Among other things in the Homeland Security appropriations bill President Obama signed into law on Wednesday is a provision that authorizes the Defense Department
to continue to conceal photos of the torture and abuse of detainees by
U.S. forces. The American Civil Liberties Union had specifically sought
those photos, and sued to get them, among other documents relating to
detainee abuse, in a Freedom of Information Act lawsuit. The exemption
signed, however, is much broader than simply the photos sought in the
lawsuit. It would apply to any other photos taken between Sept. 11,
2001 and Jan.22, 2009 that the Secretary of Defense has certified
would, if released, endanger U.S. citizens, servicemen, or employees
President Obama initially agreed to release the photos, but changed his mind
after consulting with Defense Secretary Robert Gates and others at the
Pentagon, who warned the photos would endanger U.S. servicemen in Iraq
and Afghanistan. Two federal courts have already heard and rejected
that argument, however, ruling that the Freedom of Information Act
can’t be trumped by citing unspecified dangers to unspecified potential
targets of the anger that the information may produce. The government
has appealed that ruling to the Supreme Court.
The bill signed Wednesday is an effort to get around those court rulings, and to prevent a similar ruling from the high court.
Still, it’s not clear if passage of the new law will necessarily
moot the pending court case. The lawyers could still try to challenge
the new legislation or the Pentagon’s right to invoke it.