Torture Photo Disclosure Ban out of War Spending Bill but Still Possible

During the week of June 8, an amendment [1] seeking to block disclosure of photos of abused detainees in U.S. custody was removed from the Supplemental Appropriations Act of 2009 (H.R. 2346 [2]). However, Sens. Joseph Lieberman (I-CT) and Lindsay Graham (R-SC), sponsors of the amendment, have pledged to insert the language into other legislation. Moreover, the release of the torture photos is the subject of a lawsuit that may reach the U.S. Supreme Court.

In September 2008, the U.S. Court of Appeals for the Second Circuit ruled [3] in favor of the American Civil Liberties Union (ACLU) in its lawsuit against the Department of Defense concerning a Freedom of Information Act (FOIA) request for records and photos of abused detainees. The court wrote, "It is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to encompass all United States troops, coalition forces, and civilians in Iraq and Afghanistan." In response to an April 27 court order for the release of the photos, the Obama administration initially agreed to turn over the material by May 28. At the urging of some in Congress and elsewhere, however, President Obama has since changed his mind.

The administration now argues that releasing the photos could "further inflame anti-American opinion." However, Amrit Singh, an attorney for the ACLU, said that there is value in releasing the torture photos. Singh stated [4], "Recently released legal memos elucidate the Bush administration’s torture policies, but as long as the photos are being suppressed, the public will not know the full horror of the policies’ consequences."

Lieberman and Graham attempted to prevent the release of the photos by creating a new specific exemption for them under FOIA. The senators offered the exemption as an amendment to the bill for supplemental war funding. The amendment would have withheld any "photograph relating to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States." There was no requirement that the Defense Secretary justify the withholding of documents, such as explaining how the photos may endanger personnel or provide evidence of foreseeable harm in the classified certification. The lack of a requirement for such justification runs contrary to Obama's promise in his May 21 speech [5] that, "I will tell the American people what I know and don't know, and when I release something publicly or keep something secret, I will tell you why."

Both the House and Senate passed versions of the supplemental bill with the amendment removed, but only after Obama assured [6] Democratic members of Congress that he would appeal the Second Circuit’s decision to the Supreme Court. This gave Democrats assurance that the Supreme Court would rule on the merits of disclosure. On June 12, a conference committee produced a compromise version of the supplemental bill that is due to be voted on shortly by the House and Senate.

Regardless of the president’s plans or action by the courts, Graham promised to continue inserting the provision into subsequent legislation, arguing, "Every photo is a bullet for our enemy." Lieberman pledged the same, declaring [7], "… and then we’ll continue to do everything we can to attach it to other legislation, to slow up the process."

The appellate court paved the way for the administration to appeal the ACLU case to the Supreme Court when it recalled [8] its order on June 10. It is unknown how the Supreme Court might rule; however, a decision against the ACLU may be more harmful than a legislative prohibition on the release of the torture photos, as legislative measures are often easier to reverse than Supreme Court decisions.