October 13th, 2009
12:09 PM ET
5 years ago

High court delays reviewing release of detainee abuse photos

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).


Filed under: President Obama • Supreme Court
soundoff (30 Responses)
  1. Tim

    Hey lefty loons, more change you can believe in.

    October 13, 2009 02:05 pm at 2:05 pm |
  2. Doug, New Jersey

    Democrats will not call the people who flew planes into the Pentagon and World Trade Towers terrorists, but law abiding, good hearted Americans who know their history and are against the lefts socialist take over of our nation and our freedoms are called Terrorists by every Democrat in America.

    What does it say about you when you support this by voting Democrat?

    October 13, 2009 02:09 pm at 2:09 pm |
  3. Cindy

    We've seen enough photos, and those already shown have made their impact. Move on.

    October 13, 2009 02:43 pm at 2:43 pm |
  4. RH

    The notion that it is the photographs of these acts and not the acts themselves that imperil American servicepeople is OUTRAGEOUS. Message: it's only immoral if you get caught.

    October 13, 2009 02:48 pm at 2:48 pm |
  5. fellow from chicago

    It's amazing how more and more of Obama's campaign promises and foreign policies now that he's in office mimic that of President Bush who Obama has relentlessly criticized in the past, i.e, Gitmo and Afghanistan. When all is said and done Barack will be recognized as a true Conservative Republican. Pass that funny smelling cigarette over here again please.

    October 13, 2009 02:50 pm at 2:50 pm |
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