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Detainee Photos Case: Supreme Court Sends It Back

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By Tanya Roth, Esq. on December 02, 2009 9:50 AM

The 2nd Circuit Court of Appeals will have yet another chance to review the disturbing photos of U.S. held detainees as well as a new law that applies to them. In a three sentence, unsigned opinion, the Supreme Court sent the ACLU's long-running case for the release of the infamous detainee photos back to the lower court for reconsideration in light of the new law. 

The applicable law is a homeland security and appropriations bill passed by Congress on October 29th. Part of the bill allows the Secretary of Defense to withhold photographs taken between Sept. 11, 2001 and January 22, 2009.  Earlier in his term, President Obama initially agreed to release the detainee photos, but changed his stand after "military leaders privately and intensely urged him to block it." Robert Gates, Secretary of Defense, signed the required certification withholding the photos as potentially endangering "citizens of the United States, members of the United States armed forces or employees of the United States government deployed outside of the United States," on November 13.

The decision of the 2nd Circuit in the detainee photos case permitted publication of the pictures. The Court did not agree with the government's assertion they should be withheld under the Freedom of Information Act exemption that prohibits release of information that "could reasonably be expected to endanger the life or physical safety of any individual." In it's Opinion, the 2nd Circuit found the exemption "may be flexible, but it is not vacuous." Using the exemption to protect "a population the size of two nations and two international expeditionary forces combined," said Judge John Gleeson writing for the unanimous bench, was simply insufficient. 

Under the new law, the outcome will likely be different, but the ACLU fights on. "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 group's legal director. "No democracy has ever been made stronger by suppressing evidence of its own misconduct."

Supreme Court Justice Sonia Sotomayor, recently elevated from the 2nd Circuit, did not take part in the decision. 

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