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Secretary Gates Signs Order Barring Release of Torture Photos

by Stephen C. Webber

Pursuant to new powers delegated to him by Congress, Secretary of Defense Robert Gates has executed an order blocking the release of photos depicting the torture of detainees. In doing so, it becomes highly unlikely that the Supreme Court will further consider making the photos public, as a lower court had ordered.

In a new supplemental brief [PDF link] filed with the high court, the administration's attorneys argue that the new law Congress passed to allow Gates this authority effectively exempts the photos from the Freedom of Information Act, therefore invalidating an earlier lawsuit.

"It now seems likely that today's action will put an end to the issue, making it unnecessary for the court to hear the case," MSNBC reported.

The American Civil Liberties Union, which sought the photos' release, had urged Secretary Gates to release the photos. In an open letter [PDF link], the ACLU said the images must be seen because they show the "pervasiveness" of abuse across Iraq and Afghanistan and that it was "aberrational."

"The government has previously asserted that disclosing these photographs poses risks in part because it is a 'particularly critical time' in Iraq, Afghanistan, and Pakistan," ACLU attorneys Jameel Jaffer and Alexander A. Abdo noted at the letter's conclusion. "We accordingly ask that you review any decision to withhold any photographs every ninety days to account for changing circumstances."

"In order to withhold the photos, Gates simply had to certify, as he did in the court filing, that 'public disclosure of these photographs would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States,'" Mother Jones reporter Nick Baumann noted. "In other words, their release had to endanger someone, somewhere. And in the unlikely event that Gates had to stretch the truth to make that certification, it wouldn't matter, since there's no provision in the law that allows any court to review Gates' determination or rule on whether it was truthful."

In a release condemning the president's signature of the law allowing Gates to block the photos, Jaffer continued: "Secretary Gates should be guided by the importance of transparency to the democratic process, the extraordinary importance of these photos to the ongoing debate about the treatment of prisoners and the likelihood that the suppression of these photos would ultimately be far more damaging to national security than their disclosure. The last administration's decision to endorse torture undermined the United States' moral authority and compromised its security. A failure to fully confront the abuses of the last administration will only compound these harms."

The Supreme Court is expected to react by Monday.

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