Congress backs hiding of detainee abuse photos

Miranda Fleschert | Freedom of Information | Feature | October 20, 2009

The long-fought battle to release images depicting the torture and abuse of detainees in U.S. custody appears over after Congress passed legislation today that specifically exempts them from public disclosure.

The images were initially the center of a denied request under the Freedom of Information Act, that later became the subject of a lawsuit -- which dragged on for years -- and recently were dropped into the Homeland Security Appropriations Bill as an amendment specifically exempting them from the law in an effort to supersede court decisions on the issue.

This afternoon, the Senate voted 79-19 to approve the conference report on the bill, which was approved by the House of Representatives in a 307-114 vote last week. It will now go to President Obama to be signed into law. Obama has publicly opposed releasing the photos since May.

Because of the appropriations amendment, the Supreme Court has postponed its decision on whether it will hear arguments in the lawsuit initially brought by the American Civil Liberties Union. The ACLU won release of the images in both the federal district and appellate courts and the Obama administration appealed to the Supreme Court. In the last two weeks, the government twice asked the court to delay deciding whether to take the case, taking the position that if the bill was signed into law, it would exempt the photos from release and the appeal would be unnecessary.

“This is unfortunate. We would have like to have seen this take its proper course," said Bernard J. Lunzer, President of the Newspaper Guild, which joined the Reporters Committee's friend-of-the-court briefs in the case urging release of the images.

The version of the bill that passed Congress contains an amendment originally introduced by Sens. Joe Lieberman, I-Conn., and Lindsey Graham, R-S.C., that “codifies the President’s decision to allow the Secretary of Defense to bar the release of detainee photos.”

The effect of the legislative amendment creates its own new exemption to FOIA allowing the Department of Defense to withhold the abuse photos.

The ACLU's initial FOIA request was filed in 2003 with the Defense Department. When the request was denied the organization sued. It won a 2005 ruling by the federal court in Manhattan that the images must be released. On appeal in 2008, the Second Circuit upheld the decision.

Initially, the Obama administration planned to cooperate with the rulings, announcing a May 28, 2009 deadline to release all images related to the requests. It then abruptly changed course and asked the Supreme Court to hear the case this term citing the same concerns the Bush administration had raised: that release could endanger troops overseas and encourage violence and anti-American sentiment.

“It’s disappointing, given President Obama’s commitment to transparency at the outset of his administration, that the administration came in working with Congress to essentially reverse the courts’ rulings regarding the detainee photos,” said Sophia Cope, legislative counsel for the Newspaper Association of America, which also joined the Reporters Committee's friend-of-the-court briefs.

Rep. Louise Slaughter, D-N.Y., has consistently opposed legislative measures to exempt the images from release.

“It’s unfortunate given that this Administration promised that openness and transparency would be the norm,” she said last week on the House floor. “We should never do anything to circumvent FOIA and I believe that our country would gain more by coming to terms with the past than we would by covering it up. I hope that the President will follow judicial rulings and consider voluntarily releasing these photos so we can put this chapter in history behind us.”