ACLU urges Supreme Court to let FOIA ruling stand

In an effort to salvage a favorable federal appellate court ruling on the Freedom of Information Act, the American Civil Liberties Union urged the U.S. Supreme Court on Wednesday to refuse the government’s request to vacate the court order requiring release of images depicting abuse of detainees in U.S. custody abroad.

The ACLU’s years-long battle over release of specific images from Iraq and Afghanistan ended last month when President Barack Obama signed legislation specifically exempting the photos from public disclosure. The U.S. Court of Appeals in New York (2nd Cir.) and the district court in Manhattan had both previously ordered release under FOIA.

In the brief filed Wednesday, the ACLU argued that the appeals court decision should stand because it provides valuable precedent regarding the interpretation of FOIA Exemption 7(F), which allows information to be withheld when disclosure would endanger someone, and that the decision could later be applied to other documents than the photos at issue.

The new amendment to the FOIA simply “raise[s] the independent question of whether suppression of the photographs is now proper,” and thus, argued the ACLU, Pentagon officials are free to ask the lower courts — not the Supreme Court — to interpret disclosure for these specific photos in light of Congress’ new law.

The government asked the Supreme Court on Nov. 13 to vacate the Second Circuit ruling and remand the case for further proceedings in light of the new legislation.