May 29th, 2009
12:50 PM ET
9 years ago

WH to ask high court to review release of detainee abuse photos

WASHINGTON (CNN) - The Obama administration is turning to the Supreme Court as it seeks to block public release of photos apparently depicting abuse of suspected terrorists and foreign soldiers in U.S. custody.

Justice Department lawyers late Thursday told a federal appeals court in New York - the same one on which high court nominee Sonia Sotomayor sits - to hold off a ruling ordering release of the material, saying they plan to ask the justices to hear their case.

The government said it would proceed "absent intervening legislation" from Congress.

The "motion to recall" comes after President Barack Obama ordered government lawyers earlier this month to object to the court-ordered release of photos depicting the mistreatment of prisoners held in Iraq and Afghanistan, reversing an earlier White House decision. The Pentagon had been set to release hundreds of photos in response to a Freedom of Information Act request filed by the American Civil Liberties Union.

The ACLU - which had filed the initial lawsuit for disclosure - has criticized the administration's about-face, saying it "makes a mockery" of Obama's campaign promise of greater transparency and accountability, and damages efforts to hold accountable those responsible for abusing prisoners.

The 2nd U.S. Circuit Court of Appeals ruled last September the photos must be released. The president now says doing so "would pose an unacceptable risk of danger to U.S. troops in Afghanistan and Iraq." Sotomayor has served on that court since 1998, but was not involved in that particular appeal.

The Senate last week voted for the Detainee Photographic Records Protection Act, which would limit the reach of the Freedom of Information Act in this instance. The House could adopt a similar provision next month, as part of an omnibus spending bill.

The government has until June 9 to file its initial appeal with the Supreme Court.

Solicitor General Elena Kagan - herself a finalist for the upcoming high court vacancy - told the New York-based appeals court that if Congress passes the disclosure amendment, Defense Secretary Robert Gates could "preclude release under (the Freedom of Information Act ) of the photographs at issue in this case."

In court documents filed earlier this week Gen. David Petraeus - the top U.S. commander in the region - argued public access would have a "destabilizing effect" on Pakistan and other U.S. partners in the battle against the al Qaeda terrorist network.

"Newly released photos depicting abuse of detainees in U.S. military custody in Afghanistan and Iraq would negatively affect the ongoing efforts by Pakistan to counter its internal extremist threat," wrote Petraeus, the chief of U.S. Central Command.

U.S. allies in the region already "struggle with their populations' perceptions that they are merely instruments of the U.S. government and do not have their citizens' best interests at heart," and releasing the images "would likely deal a particularly hard blow" to American efforts in those countries, he stated.

He predicted a likely result of the photos' release would be "civil unrest via spontaneous demonstrations in Pakistan's largest cities."

Forty-four photos are covered in the ACLU request for release, but others could be released under the earlier appeals court ruling.

The justices would be under time pressure to decide whether to accept the government's appeal for review, before the court recesses for the summer in late June. They would not return until late September, when Sotomayor would join them if confirmed.

The case is ACLU v. Department of Defense (06-3140).

Filed under: Obama administration • Supreme Court
soundoff (45 Responses)
  1. matt

    If the ACLU is involved, I know exactly what position I take.....the opposite one.

    Good job Obama (and that is the only time I will say that)

    May 29, 2009 02:30 pm at 2:30 pm |
  2. MaryJo Bruce Surprise, Ariz

    Move on people!

    May 29, 2009 02:30 pm at 2:30 pm |
  3. Teleprompter of the U.S.A.

    President Flip Flop to the rescue!!

    The only reason he isn't releasing these photos is because the U.S. public is firmly against release of the photos. It isn't because of any beliefs of his won.

    May 29, 2009 02:41 pm at 2:41 pm |
  4. Cynthia - Arkansas

    After reading about what is shown in the photos (rape) I don't think we want those released. I wish people would stop second quessing everything that President Obama does. I believe that he knows a whole lot more about a situation than the rest of us do and he will do what is right. He is a decent and fair man.

    God bless you President Obama!

    May 29, 2009 02:49 pm at 2:49 pm |
  5. Willy Brown

    More distractions from camp Obama that means he's getting ready to sneak in a huge tax hike while his lap dog media salivates on TV for him over some old pictures.

    May 29, 2009 02:49 pm at 2:49 pm |
  6. MD

    President Obama promised transparency in his government. He did not promise transparency that may jeopardize the safety of our men and women in uniform.

    For all those people who are attacking Obama for reversing himself, think how you would feel if your son or daughter was serving abroard, and these pictures came out. Be grateful that you do not have another obstinate president like Bush, who never wavered, no matter how wrong on an issue.

    Obama listened to his generals on the ground and did the right thing by reversing his decision. I am sure Obama is aware of the political damage for being viewed as a flip-flopper. I admire him for putting the safety of our military personnel above himself.

    ACLU should pause and consider the harm the release of these pictures may cause our sons and daughters serving abroad, at this time, and withdraw the suit.

    May 29, 2009 02:58 pm at 2:58 pm |
  7. yuri

    We agree that it could pose a potentially dangerous threat to our troops abroad and put them in harm's way.

    May 29, 2009 03:01 pm at 3:01 pm |
  8. Tk1

    yes please show the world so they can get angry and bomb the hell out of us!!!!!! ignorance all of this is, WAR is HELL, what would you prefer?? to serve TEA and CRUMPETS?

    May 29, 2009 03:11 pm at 3:11 pm |
  9. JA/TN

    do we really need to see the photos, we get point, we need to focus on jailing the top dogs, not the low ranks, they only followed orders

    May 29, 2009 03:20 pm at 3:20 pm |
  10. dan

    Bo might be able to change laws "now" but he's not got so he cannot judge those who came before him. Also he should be held entirely responsible for anu deaths that result from his unwillingness to take tough action on those who intend us harm. Bo might find it difficult to keep an army staffed with his liberal "I won't protect you" attitude.

    May 29, 2009 03:38 pm at 3:38 pm |
  11. Grrr-awful-o

    I hope the pictures are released. Someone in the Obama administration must have realized that they'll own the fallout now. And we got some 'change we can believe in' on their position on this topic.

    May 29, 2009 03:55 pm at 3:55 pm |
  12. Neilz

    He's all but made his case on the national security preclusion. He'll let the ACLU muck through the legal quagmire, and if he doesn't get the ruling he wants he could simply issue an Executive Order banning release as detrimental to national security, further miring the ACLU in legal limbo until after 2012. We'll never see the photos. We'll never get a full hearing or objective examination of the evidence. We are being played.

    May 29, 2009 04:17 pm at 4:17 pm |
  13. J.P.

    With the proposed closing of Club Gitmo, the result has already surfaced in the battlefield:
    Fewer "detainees" are being detained for questioning.
    They're just being shot in the field.

    Nice move, Dems (or should I say "the party of unintended consequences"). You people just keep opening the door into your own noses.

    May 29, 2009 04:19 pm at 4:19 pm |
  14. Unhappy

    The terrorists already have their recruiting posters from Abu Graib. Not to mention 10,000s killed and terrorised by our troops.

    This is an opportunity to purge the shame from America.

    May 29, 2009 04:26 pm at 4:26 pm |
  15. flybyshoeing

    Some of the most disgusting photos are already out. Huffington Post has multiple stories with links. Also many of the comments have additional links. Don't look unless your stomach is empty. You may vomit. There are women and children in some of the pictures. They are very bad. I doubt this comment will make it through.

    May 29, 2009 05:17 pm at 5:17 pm |
  16. flybyshoeing

    I understand the decision to try and keep them sealed, but what I do not understand is lying about the content. The Pentagon and Robert Gibbs both lied yesterday.

    May 29, 2009 05:19 pm at 5:19 pm |
  17. DawnL,CA

    This is not the time to release photos. We have 2 wars & Pakistan & N.Korea to concern ourselves .It shows that Obama can listen to his generals which is more than I can say for all the Bushies.

    May 29, 2009 05:40 pm at 5:40 pm |
  18. The Broker.

    Nataka Picture. Moto-Picture. Show Bwana Bush was right... Obama was wrong..

    May 29, 2009 05:50 pm at 5:50 pm |
  19. MBFLA

    Dick and Dubya have created vastly more enemies with their horrible belief in torture. People all over the world know what has been done in our name and our status is so much less because of the sadists of the previous administration who thought they would learn something by torturing people to the point of making them insane. If they did not hate us before, they surely do now! How could you blame them? Rape... slamming heads against walls... preventing sleep for weeks... unrelenting stress positions....subjecting them to their greatest phobias, who makes up this stuff and to learn what? Sounds like nothing. Sick, sick sick. Kill me quickly but don't let Cheney torture me, please!

    May 29, 2009 05:55 pm at 5:55 pm |
  20. Wanda in FL

    if the President feels releasing these photos might hurt our troops i trust his judgement.

    May 30, 2009 09:48 pm at 9:48 pm |
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