The Solicitor General has asked the Supreme Court to postpone its decision to hear arguments in the case over whether abuse photos of detainees in U.S. custody should be released to the public because if a pending Homeland Security Appropriations Bill is signed into law, the government may have the authority to exempt the photos from release and the appeal would be unnecessary, she contends.
The Supreme Court was set to consider the case at its conference today, but Solicitor General Elena Kagan urged the Supreme Court to postpone its decision in a letter sent to the court Thursday.
The House and Senate had already both passed the bill and sent it to a conference committee to reconcile the differences. On Oct. 7, the committee released a conference report that contained an amendment that “codifies the President’s decision to allow the Secretary of Defense to bar the release of detainee photos.”
The original amendment was introduced by Senators Joe Lieberman, I-Conn., and Lindsey Graham, R-S.C., and passed the Senate in July. House members passed the bill, then voted on Oct. 1 to instruct its members who would attend yesterday’s conference to accept the Senate’s photo-ban amendment.
The ACLU responded to the Solicitor General’s letter Thursday by asking the Supreme Court not to delay its decision. “The government will be free to present any new arguments against disclosure to the district court,” wrote Jameel Jaffer, Director of the ACLU National Security Project.
The dispute over whether the photos should be disclosed began in 2003 when the American Civil Liberties Union filed a Freedom of Information Act request with the Department of Defense. A district court in Manhattan ordered the DOD to release the photos in 2005 and a Second Circuit court agreed when the decision was appealed in 2008.
The Obama administration decided to go forward with an appeal to the Supreme Court in May, despite earlier statements that supported the release of the photos. Administration officials agreed with the Bush administration that disclosing the photos might endanger troops overseas and encourage violence and anti-American sentiments.
Freedom of information advocates disagree. “Congress should not give the government the authority to hide evidence of its own misconduct,” said Jaffer in a news release. “The suppression of these photos will ultimately be far more damaging to the national security than their disclosure would be,” he said.