WASHINGTON (CNN) – The Supreme Court has postponed deciding whether the Obama administration can block public release of photos apparently depicting abuse of suspected terrorists and foreign soldiers in U.S. custody.
The Obama administration told the justices late last week of an apparent agreement with Congress on a law preventing disclosure of the material. That could render the legal issues moot.
President Barack Obama had initially favored the release, which had been opposed by the Bush administration, but changed his mind after intense urging against it by military leaders.
That led the American Civil Liberties Union, which had sought access to the photos under the Freedom of Information Act, to file a lawsuit seeking disclosure.
The ACLU said the administration's about-face "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 New York-based 2nd U.S. Circuit Court of Appeals ruled in September 2008 the photos must be released. The president later said doing so "would pose an unacceptable risk of danger to U.S. troops in Afghanistan and Iraq."
Newest Justice Sonia Sotomayor served on that appeals court until August, but was not involved in this ruling, which could have led to the release of hundreds of offensive images of Iraqi and Afghan prisoners.
The Senate in May approved the Detainee Photographic Records Protection Act, which would limit the reach of the Freedom of Information Act. The House adopted a similar provision this month. Conferees from both chambers on Wednesday then reached a compromise to keep the photos under wraps.
Solicitor General Elena Kagan - the administration's top lawyer before the Supreme Court - told the justices in a legal filing last week that if Congress passes the disclosure amendment, "it now appears likely the secretary of defense will have legal authority to exempt the photographs at issue in this lawsuit from disclosure under FOIA."
The ACLU quickly responded, saying the legal issues at stake should be addressed now. The pending congressional action "does not supply any reason for delay," argued Jameel Jaffer, head of the group's National Security Project.
In court documents filed last spring, Gen. David Petraeus - the top U.S. commander in the region that includes Iraq and Afghanistan - 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.
Forty-four photos are covered in the ACLU request for release, but others could be released under the earlier appeals court ruling.
The case is ACLU v. Department of Defense (09-160).