House Democrats who strongly objected to a legislative measure banning the release of detainee abuse appear to have succeeded in getting the provision removed from the appropriations bill to which it had been attached.
A congressional conference committee pulled all provisions related to the Freedom of Information Act from the broader war supplemental funding bill.
The Senate version of the bill had included a provision creating a process for the Obama administration to withhold from public release a series of photos documenting detainee torture in Afghanistan and Iraq. It also included a separate provision that would have required Congress to flag any future bills proposing new exemptions from disclosure under FOIA.
The House did agree to a non-binding resolution stating that the photos should not be released. But that is not expected to affect the supplemental bill.
The release of the photos became a contentious issue in the debate over the war spending bill, with origins in an order issued by the U.S. Court of Appeals in New York (2nd Cir.) that the photos should be released in response to a FOIA lawsuit brought by the ACLU. President Obama had initially said his administration would comply with that order, but last month he changed his mind and said the government would continue fighting the case.
The Senate took up the administration’s cause with a provision in the supplemental bill that would have allowed the White House to withhold the photos without having to press ahead in the judicial system.
Unless Congress acts, the government’s only recourse is to appeal to the Supreme Court. It has until July 9 to file a petition asking the Court to take the case. The Second Circuit will also have to take procedural steps to allow the appeal to continue, because of the White House’s changing position on the matter.
The Reporters Committee has supported the ACLU’s pursuit of the photos, and asked the Second Circuit not to allow the appeal to continue.
Earlier this week, the senators who sponsored the measure said they would continue attaching it to other legislation until it passed.