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
"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.