Obama Administration Takes Legal Moves to Block Release of Detainee Photos

If it’s Friday afternoon, that must mean it’s time for the Obama administration to either release a detainee from Guantanamo, or file legal paperwork about which it doesn’t want much media attention.

And thus:

President Obama’s administration – specifically the office of the Solicitor General, Elena Kagan – this afternoon formally requested that the U.S. Supreme Court block the release of photos showing detainee abuse. The brief calls the behavior depicted in the photographs “reprehensible,” yet argues the court of appeals ruling ordering the release of the photographs made an improper judgment regarding the exemption allowed to  the Freedom of Information Act, when the release of certain information would put certain individuals in danger.

You can read the filing HERE.

“The President of the United States and the Nation’s highest-ranking military officers responsible for ongoing combat operations in Iraq and Afghanistan have determined that disclosure by the  government of the photographs at issue in this case would pose a significant risk to the lives and physical safety of American military and civilian personnel by inciting violence targeting those Personnel,” the Obama administration argues. “The court of appeals did not question the gravity or probability of that risk, nor did it doubt the professional military judgments underlying that assessment.”

The brief notes, "All 29 photographs are contained within files relating to six investigations conducted by the Army’s Criminal Investigation Command…into allegations of abuse or mistreatment of detainees in Iraq and Afghanistan.”
 
You may recall in April the Obama administration announced it would turn over to the American Civil Liberties Union photographs showing detainee abuse of prisoners in Afghanistan and Iraq during the Bush administration. The photographs are part of a 2003 Freedom of Information Act request by the ACLU for all information relating to the treatment of detainees — the same battle that led to President Obama's decision to release memos from the Bush Justice Department's Office of Legal Counsel providing legal justifications for harsh interrogation methods that human rights groups call torture.

Then in May, President Obama reversed course.

“The most direct consequence of releasing them, I believe, would be to further inflame anti-American opinion and to put our troops in greater danger," the president said. "Moreover, I fear the publication of these photos may only have a chilling effect on future investigations of detainee abuse."

At the time, President’s spokesman maintained that the president had come up with a new way to argue the case.

The legal brief filed today argues that the previous appeals court ruled that the Freedom of Information Act “mandates the public disclosure of such photographs—regardless of the risk to American lives —because FOIA Exemption 7(F) requires the government to ‘identify at least one individual with reasonable specificity’ and show that disclosure ‘could reasonably be expected to endanger that individual.’”

That holding, the Obama administration argues, “is inconsistent with the text of Exemption 7(F), which broadly encompasses danger to ‘any individual,’ with no suggestion of the court’s extra-textual requirement of victim specificity.” The history of drafting that exemption “underscores that conclusion,” the brief argues. “Congress did not mean for public disclosure of agency records to trump the life and physical safety of individuals—particularly in a case such as this, in which the government has already made public the underlying investigative reports revealing all relevant allegations of wrongdoing and the associated investigative conclusions.”

The briefing goes on to detail previous examples of Exemption 7(F) being granted.

“The President and the United States military fully recognize that certain photographs at issue depict reprehensible conduct by American personnel and warranted disciplinary action,” the brief states.” There are neither justifications nor excuses for such conduct by members of the military. But the fact remains that public disclosure of the photographs could reasonably be expected to endanger the lives and physical safety of individuals engaged in the Nation’s military operations in Iraq and Afghanistan. The photographs therefore are exempt from mandatory disclosure under FOIA. Review by this Court is warranted to give effect to Exemption 7(F) and the protection it affords to the personnel whose lives and physical safety would be placed at risk by disclosure.”

-jpt