Supreme Court Orders Review of Detainee Abuse Photos Case

Congress' new law prohibits photos release, disappointing ACLU.

ByAriane De Vogue
October 12, 2009, 4:29 PM

Nov. 30, 2009— -- The Supreme Court today asked a lower court to reconsider its decision to order the release of photos showing U.S. military service members abusing Iraqi and Afghan detainees.

The court's move comes just weeks after Congress passed the Department of Homeland Security Appropriations Act, which specifically forbids the public release of the photos.

The American Civil Liberties Union, which has fought for years for release of what may be hundreds of graphic images, had hoped the court would hear arguments and rule to uphold previous decisions in their favor.

"We continue to believe that the Defense Department's suppression of these photos is both unlawful and unwise, and that there is a strong public interest in the photos' release," said Jameel Jaffer, Director of the ACLU National Security Project.

The ACLU first filed the lawsuit after the Bush administration denied a Freedom of Information Act (FOIA) request to release the photos back in 2003. The government has argued for years that the photos should be exempted from the FOIA, but lower federal courts have previously rejected that claim.

The Obama administration initially said it would comply with a 2008 federal appeals court decision ordering the release of the photos, but President Obama later reversed course and had his lawyers petition the Supreme Court.

While the case was pending, Congress enacted the legislation permitting the Defense Department to exempt photos from FOIA.

While administration officials admit the photos depict improper behavior that took place during the Bush presidency, they say that appropriate actions have been taken and that the release of the photos would endanger the lives of troops currently serving abroad.

Security Risk or Public Information?

In briefs filed with the Supreme Court, government lawyers had argued the "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."

Solicitor General Elena Kagan wrote that some pictures show "soldiers pointing pistols or rifles at the heads of hooded and handcuffed detainees... [and] a soldier holds a broom as if sticking its end into the rectum of a restrained detainee."

The ACLU's Jaffer argued that the photos show "profound government misconduct" and that they can "help us understand patterns of abuse" that they allege have occurred since the beginning of the war on terror. The ACLU had opposed congressional action to prevent the photos' release.

The ACLU contends that the broader public needs to see the pictures to get a full understanding of the abuse that has been investigated. According to Jaffer, "This is precisely what the FOIA was meant for."

ABC News' Devin Dwyer contributed to this report.

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