Academic

The fuss revolves around the phrase "any individual."  The government argues that those words should be given their plain meaning, and since no-one disputes that disclosure of the photos could lead to retaliation against US troops, coalition forces, and sympathetic civilians (each of whom is obviously an 'individual'), the photos are protected from disclosure under 7F.  It's a basic national security argument most of us can appreciate.

The problem is that it doesn't necessarily reflect Congress's intent with respect to FOIA or its exemptions.  Prior to 1986, section 7F was concerned only with the potential for revealing the identity of a confidential source or disclosures that would endanger the life or safety of law enforcement personnel.  Information that fell into this category did not have to be revealed. 

But even the ACLU agreed that the risk of disclosure reached beyond informants and the police.  What about witnesses, members of their family, and other individuals who cooperated with a criminal investigation?  Congress eventually addressed this concern by adopting the broad language quoted above.

The new section 7F, however, doesn't necessarily refer to 'any' person, at 'any' time, under 'any circumstance.'  To quote the Court of Appeals:

Congress has always envisioned exemption 7F as a shield against specific threats to particular individuals arising out of law enforcement investigations, never as a means of suppressing worldwide violence.

Moreover, no-one's identity is really at risk.  The ACLU has already agreed that the government could redact the photos to conceal the faces or other information that could identify soldiers involved in the abuse.

Still, no-one disputes the potential harm in a general sense that could follow disclosure of more torture photos.  So what's the government supposed to do?

Stay tuned for the next post.

-Kathleen Bergin