Supreme Court Sends ACLU Torture Photos Case Back to Appeals Court

The
U.S. Supreme Court today sent back to an appeals court a Freedom of
Information Act (FOIA) lawsuit brought by the American Civil Liberties
Union for the release of photos depicting the abuse of prisoners in
U.S. custody overseas. The U.S. Court of Appeals for the Second Circuit
ruled in 2008 that the photos must be released to the public, but
Congress recently enacted legislation that permits the Secretary of
Defense to exempt the photos from FOIA. Defense Secretary Gates invoked
that legislation earlier this month. The Supreme Court has now vacated
the Second Circuit's original decision and ordered that it reconsider
the case in light of the new legislation and Secretary Gates'
certification.

"We continue to believe that the
photos should be released, and we intend to press that case in the
lower court," said Steven R. Shapiro, Legal Director of the ACLU. "No
democracy has ever been made stronger by suppressing evidence of its
own misconduct."

The ACLU has been litigating for the
release of the photos for several years. A district court in New York
ruled in 2005 that the government had not justified the withholding of
the photos, and the appeals court upheld that ruling in 2008. The
appeals court denied the government's petition for rehearing en banc in
2009. President Obama initially said that he would abide by the Second
Circuit's decision and release the photos, but his administration
changed course earlier this year and petitioned the Supreme Court to
hear the case. Before the Supreme Court could adjudicate the
government's petition, however, Congress enacted legislation that
permits the Defense Department to exempt photos from FOIA.

"We continue to believe that the
Defense Department's suppression of these photos is both unlawful and
unwise, and that there is a strong public interest in the photos'
release," said Jameel Jaffer, Director of the ACLU National Security
Project. "The photos would show connections between government policy
and the abuse that took place in the detention centers. They might also
show patterns that have until now gone unnoticed. Their disclosure
would both discourage abuse in the future and underscore the need for a
comprehensive investigation of past abuses. And we continue to believe
that permitting the government to suppress information about government
misconduct on the grounds that someone, somewhere in the world, might
react badly - or even violently - sets a very dangerous precedent."

The ACLU has been seeking the
release of the photos and other records related to detainee abuse
through FOIA litigation initiated in 2004 in the U.S. District Court
for the Southern District of New York. That court ordered the release
of the photos in a June 2005 ruling that was affirmed by the Second
Circuit in September 2008.

Attorneys on the case are Shapiro,
Jaffer, Alexander A. Abdo, Judy Rabinovitz and Lucas Guttentag of the
ACLU; Arthur Eisenberg and Beth Haroules of the New York Civil
Liberties Union; Lawrence S. Lustberg and Jenny-Brooke Condon of
Gibbons, P.C.; and Gitanjali S. Gutierrez and Shayana Kadidal of the
Center for Constitutional Rights.

More information about the ACLU's FOIA lawsuit is available online at: www.aclu.org/accountability