Federal Judiciary

Military abuse photos case on way to Court?

By Akin Gump Supreme Court Practice Group

President Obama’s switch to a position opposing court-ordered release of some 45 Army photos that apparently show severe abuse of terrorist suspects may be on the way to the Supreme Court — but maybe not.

In a letter to a federal judge in New York advising of the switch (announced Wednesday by the President), federal prosecutors said that “the government has decided to pursue further options” to challenge a Second Circuit Court ruling requiring release of the photos that were used in Army investigations and prosecutions of soldiers involved in incidents in Iraq and Afghanistan.

The options, according to the letter, include but are not limited to asking the Supreme Court to review the Second Circuit decision.  The Wednesday letter by prosecutors in New York City can be downloaded here.  A letter by those same prosecutors, sent April 23 (available here), said “the Government has now determined that it will not seek certiorari of the Second Circuit’s decision.”  It went on to say that the Pentagon was preparing to release the 44 photos “by May 28.”

If the Administration does choose the option of going to the Supreme Court, a petition would now be due there by June 9.  The government, however, would have the option of seeking an extension of time to file a petition.  In the meantime, it may have to seek a stay, since the Second Circuit, after denying en banc rehearing , has issued its mandate in the case.

Although the latest letter did not indicate what other options the Administration might attempt, there have been news accounts that the President might seek to short-circuit any court order for release of the photos by classifying them as national security secrets.  That would, of course, run some risks, since the government had once been ready to give up the photos, and might seem to be using the classification system as an end-run around the courts.

The case has been moving through lower courts as a test of public access to the photos under the Freedom of Information Act.  The Second Circuit rejected government claims that the photos were exempted under two provisions in the Act — one that seeks to protect from disclosure a law enforcement record that, if released, could endanger “any individual,” and one that seeks to protect personal privacy.

In seeking en banc review at the Circuit Court, however, the Justice Department sought only to test its right to the endangering-an-individual section.  That might be one basis for a petition to the Supreme Court for review.  The government has argued that release of the photos may endanger U.S. forces abroad by inflaming the nation’s terrorist enemies. That is the argument the President made again on Wednesday.  The Second Circuit said that the endangerment exemption only applies to an identifiable indvidual, not one who is simply part of a larger group — such as the U.S. or coalition forces.

If the government were now to classify the photos, it might then seek to claim an FOI Act exemption under a section that protects any document or record that under presidential order is “to be kept secret in the interest of national defense or foreign policy.”

A national security exemption claim could still be challenged in court by those seeking access to the photos, because the FOI Act specifies that a secret can be withheld from disclosure only if it “in fact properly classified” under presidential order. That is for a judge to decide, although judges often defer to the Executive Branch’s view of what needs to be classified.

Those seeking the photos might also protest that the national security exemption should not be available now, because the government has never previously sought to rely upon it and thus at least impliedly waived it.

The photos have been sought in years of litigation by the American Civil Liberties Union, the Center for Constitutional Rights, the Physicians for Human Rights, the Veterans for Common Sense, and the Veterans for Peace.  The plea for access began with FOI Act requests nearly six years ago.  The requests sought record about the treatment and death of prisoners held in U.S. custody overseas after the terrorist attacks of Sept. 11, 2001.

While the abuse photos have not been released, the lawsuit has resulted in disclosure of more than 100,000 government documents, according to the ACLU.

Full post as published by SCOTUSBLOG on May 14, 2009 (boomark / email).