Supreme Court rules to keep detainee abuse photos secret

McClatchy NewspapersNovember 30, 2009 

WASHINGTON — The Supreme Court did all it could Monday to lock up forever some incendiary photos that show U.S. soldiers abusing foreign prisoners in Iraq and Afghanistan.

Yielding to Congress and the White House, justices took the expected but formal step of reversing a lower court's order that the pictures be released. Using its budget powers, Congress already had moved to keep the photos secret.

In a brief, unsigned decision issued Monday without elaboration, the court cited a provision in a Homeland Security funding bill that President Barack Obama signed Oct. 28. The provision permitted the Pentagon to block the public release of the pictures in question, as well as others deemed to "endanger" U.S. soldiers or civilians.

"Disclosure of those photographs would pose a clear and grave risk of inciting violence and riots against American troops and coalition forces," Solicitor General Elena Kagan had warned the Supreme Court.

The Justice Department's brief noted that one picture shows "several soldiers posing near standing detainees who are handcuffed to bars with sandbags covering their heads while a soldier holds a broom as if sticking (its) end ... into the rectum of a restrained detainee."

Another photo shows a soldier who appears to be striking an Iraqi detainee with the butt of a rifle. There are at least 21 color photos in question, depicting U.S. soldiers in Iraq and Afghanistan.

Technically, the one-paragraph ruling kicks the case back to the New York-based 2nd U.S. Circuit Court of Appeals, which is all but certain to follow orders not to release the pictures.

"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, the legal director of the American Civil Liberties Union. "No democracy has ever been made stronger by suppressing evidence of its own misconduct."

Some lawmakers had joined with the ACLU in arguing that releasing the pictures would be better for the United States in the long run. The ACLU filed the original Freedom of Information Act request on interrogation and detention practices, which so far has produced more than 100,000 documents.

"Our repeated mis-targeting of civilians in Afghanistan and Pakistan, along with our continuing and expanding military presence in Afghanistan, provide our enemies with far better recruiting tools than the photographs in question might ever provide," Rep. Rush Holt, D-N.J., contended during debate in the House of Representatives.

After first pledging to release the pictures, the Obama administration reversed course and aligned itself with Bush administration arguments that the photos would endanger all U.S. troops. An appellate court had rejected this argument as too broad.

"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," the 2nd Circuit Court of Appeals reasoned in September 2008.

Justice Sonia Sotomayor, formerly a judge on the 2nd Circuit, didn't participate in the Supreme Court's decision Monday. No vote was released.

Though expected, in the wake of the White House and congressional action, the Supreme Court's order went further than some civil liberties advocates wanted. By vacating the 52-page decision that the 2nd Circuit issued, the high court erased a potentially precedent-setting victory for those seeking the release of documents through the Freedom of Information Act.

A trial judge originally had ordered the release of the pictures four years ago, in a 50-page decision that said the Bush administration was "inattentive for many months to the obligations imposed on it by FOIA."

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