From the Summer 2009 issue of The News Media & The Law, page 14.
It is becoming increasingly apparent that the debate surrounding the release of dozens of photos documenting abuse and torture of prisoners by U.S. officials may spark a confrontation between the White House and the court system.
It’s a fight that might have been expected during the Bush administration, but comes as a surprise to openness advocates now that President Obama is in office.
Administration changes, arguments stay the same
The photos in question, requested by the American Civil Liberties Union under the federal Freedom of Information Act, have been the subject of litigation since 2003. Both a federal trial court and the U.S. Court of Appeals in New York City (2nd Cir.) have ordered their release.
But the Pentagon argues, as the Bush administration did, that releasing the photos now could endanger troops and encourage violence aimed at them.
That claim is at the heart of a bid to get the U.S. Supreme Court to take the case, or to have Congress block the release of photos with legislative action, or even for the president do so himself with an executive order.
Speculation has been building over the executive order option. It is unclear whether the White House could classify the photos under the current executive order on classification, because the photos, while depicting detainee abuse, may not fall under one of the eight categories of information that can be classified.
Generally, the current executive order allows classification of military plans, foreign government information, intelligence activities, foreign relations of the United States, scientific, technological or economic matters relating to national security, programs to safeguard nuclear facilities, infrastructure system vulnerabilities that relate to national security and weapons of mass destruction.
That means a new executive order on classification may be in the works, or there may be an order tailored to address these photos.
But even with a new executive order, it is unclear whether the president could use his power as the head of the executive branch to withhold the photos.
“If a court said no, it would raise a very interesting separation of powers issue,” said Anne Weissman, the chief counsel for Citizens for Responsibility and Ethics in Washington, who has litigated several FOIA cases and followed the ACLU’s efforts to get these photos released.
Such a move would almost certainly lead to more litigation in the case, tying up the release of the photos for several more years.
Weissman also pointed out that the Bush administration didn’t classify the photos and that the Obama White House must have agreed with that assessment when it initially decided to release the photos.
Supreme Court could hear case
After the Second Circuit ordered the photos released in 2008, the Obama administration had plenty of time to decide whether it would appeal the case to the Supreme Court. The White House declared — to the courts, to the press, to the Pentagon — that it would not.
In a letter to the New York trial court that originally heard the case, the Justice Department said in April: “As the Government has now determined that it will not seek certiorari of the Second Circuit’s decision, the Department of Defense is preparing to release the 21 photos at issue in the appeal and 23 other photos previously identified as responsive.”
The letter continued, “In addition, the Government also is processing for a substantial number of other images contained in the Army CID reports that have been closed during the pendency of this case; these other images will be processed consistent with the Court’s previous rulings on responsive images in this case.”
White House Press Secretary Robert Gibbs said in an April 24 briefing that the Justice Department felt an appeal would be “hopeless.”
The photos were to come out by May 28.
But almost two weeks later, the Justice Department sent another letter to the court, saying the photos would not be released and an appeal to the Supreme Court was being considered after all.
The government told the Second Circuit in May that the White House now believed releasing the photos “would create an unacceptable risk of danger to U.S. soldiers and U.S. military and foreign policy interests.”
Amrit Singh, an ACLU staff attorney who is working on the case, counters that that very claim had already been “soundly rejected.” Courts heard the national security argument and found it lacking when President George W. Bush’s team was still in charge.
To the ACLU, Singh said, the photos would help bring public accountability to whatever occurred in U.S. detention facilities abroad, and encourage national dialogue on torture. The photos could also shows links between the Pentagon’s policies and the mistreatment that apparently went on, she said.
“As a threshold matter the release of the photos would uncover the facts on the ground with respect to abuse of prisoners,” Singh said. They would also “underscore the need for an independent investigation for who is responsible for these abuses.”
She continued, “Their mere existence demonstrates that the Bush administration’s claims the abuse is merely aberrational are false.”
In a May editorial, the Los Angeles Times also called for release of the photos.
“Photographs are part of the historical record. Think of these images: black men hanging from trees in the American South; emaciated concentration camp survivors; prisoners shackled into cramped ‘tiger cages’ in South Vietnam. Would this be a better world without those photos?” the editorial said.
Even if the Supreme Court were to take the case, there is a fear it could damage open records laws and hand down a decision that gives the government significant discretion in these questions, Weissman said.
“I guess the question comes down to are enough justices going to be so troubled by this material getting out there that they’re going to look for a way to say the law is more expansive than the Second Circuit said,” she said.
As the administration has pressed ahead with its legal case, Congress has tried to step in with a plan to withhold the photos for a given period.
The Senate attached a provision to the supplemental appropriations bill for war spending that would have created a process allowing the White House to withhold the photos for a limited time. The House of Representatives, however, refused to agree to the amendment, and it was removed from the final funding bill.
While Congress was debating the issue, the White House asked the Supreme Court for an extension of time to appeal. The extension ends in early August, and the government is expected to ask the Court to hear the case by then.
Still, the Obama administration’s arguments against release aren’t new.
The ACLU pointed this out when it asked the Second Circuit to not allow the government to appeal to the Supreme Court. The government argued the “release would present a grave risk of inciting violence . . . and providing [terrorists] with valuable tools for recruiting and propaganda,” whereas years earlier the government had told the court the “disclosure of the photos could reasonably be expected to incite violence against United States troops, other Coalition forces, and civilians in Iraq and Afghanistan,” the ACLU said in papers filed with the court.
The Reporters Committee supported the ACLU in this argument, filing a friend-of-the-court brief on behalf of the organization.
“Respectfully, ‘inflammation of anti-American opinion’ — another argument against release — “without more specific identification of harm is not an adequate legal standard to justify withholding these images. The Bush administration was against release of the images for similar reasons and made those arguments before this Court. These concerns and arguments were raised and rejected as insufficient to withhold the photos under the law. They deserve no renewed consideration here,” the Reporters Committee’s brief argued.
Without legislation, the White House is left with two choices — appeal the case to the high court, or issue an executive order that would classify the photos.
Both are risky choices. Those Republicans in the Senate who pushed for the photos to be withheld legislatively said the courts, in refusing to ban their release, had applied the law correctly, and that the Supreme Court was likely to agree with the lower courts that the photos must come out.
But even if the Court does side with release — which is not a foregone conclusion given the makeup of the Court and the president’s statements on the issue — there’s a possibility such a Court decision could be overridden either by legislation or by an executive order.
Singh said the ACLU would fight any move to classify the photos. “We don’t think there’s any basis for classifying this information. These are photographs of prisoner abuse,” she said.
The government’s efforts to stop the photos from being released, Singh said, are at odds with the goals of FOIA and the rule of law because they are based on an effort to withhold information because it is embarrassing to the government.
“That argument has no place in democracy,” she said.
The Times editorial agreed: “Trying to cover up atrocities because someone might be angry isn’t right and won’t work. Instead, the Pentagon should release the photos while making it clear that the U.S. repudiates such barbaric behavior and is committed to dismantling the culture that allowed it to occur.”