Transparency in wartime at issue
on Aug 12, 2009 at 4:10 pm
The Obama Administration, arguing an urgent need to protect U.S. troops in Iraq and Afghanistan, has asked the Supreme Court to put a strict new limit on public disclosure of evidence — including photos — of torture or abuse of wartime captives by U.S. military personnel. Although only a single federal court has ruled on the issue, the Administration contended that the Supreme Court should not await further cases because of the “grave consequences” it said are now threatened.
The case of U.S. Defense Department, et al., v. American Civil Liberties Union, et al. (docket 09-160), was filed last Friday at the Court. It involves the high-visibility controversy over public release of at least four dozen Army photographs that show abuse of prisoners in U.S. custody in both war zones, in Iraq and Afghanistan. The new petition can be downloaded here. The Second Cirtcuit Court ruling being challenged is here.
Whether the Court actually rules on the issue, however, appears to depend upon whether the Administration is able, when Congress returns from summer break, to persuade the lawmakers to change the federal law at issue. The disclosure issue arises under the Freedom of Information Act, and proposals are now pending in Congress to undo the Second Circuit’s interpretation of the FOIA section at issue. If the legislation passes, the photos would be protected from public release, and there would be nothing left at issue legally. (There are no constitutional issues even implicit in this dispute; no one is claiming a constitutional basis for public access to the abuse photos.)
Although the case focuses on a single two-word phrase in one section of the FOIA, the dispute actually has major significance for transparency in wartime: at issue is whether the government can prevent the public disclosure of unclassified evidence of military misconduct during wartime, based on a generalized claim that release will threaten harm to U.S. military forces in the field.
President Obama and his aides had agreed at one point not to contest the release of the photos, and had decided not to take the case on to the Supreme Court. But the President changed his mind on the basis of strong urging by Pentagon leaders that U.S. troops in the war zones would be gravely threatened by violence stirred up by resentment over the contents of the photos.
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The ACLU and other advocacy groups sought release of the photos to inform the public about how terrorism suspects were treated while being held by U.S. forces overseas. Some of the photos already have appeared on the Internet. Reports of government investigations of abuse claims also have been released, describing in detail some brutal scenes.
As of now, the disclosure demand focuses on the meaning of FOIA’s Section 7. exempting from general disclosure requirements for government records any law enforcement files, if their release “could reasonably be expected to endanger the life or phyhsical safety of any individual.”
The Second Circuit, ordering release, concluded that the governmend could use that exemption only if it offered evidence of a threat to an identified individual  The phrase “any individual,” the Circuit Court concluded, does not permit withholding of information based solely on the threat of danger to U.S. forces generally. Congress, it said, was interested in shielding only persons whose safety might be directly threatened, not broader risks that may be only speculative.
No other court has given that interpretation to the FOIA provision. Still, the Pentagon petition says that the judgment of the President and top military leaders is that the threat of violence to U.S. troops is a real one, and FOIA should be understood to protect against that type of risk.
The petition declares: “The President of the United States and the Nation’s highest-ranking military officers responsible for ongoing combat operations in Iraq and Afghanistan have determined that disclosure by the government of the photographs at issue in this case would pose a significant risk to the lives and physical safety of American military and civilian personnel by inciting violence targeting those personnel.” It noted that the Second Circuit acknowledged the threat, but was not persuaded by that.
Here is the legal question the petition presents: “Whether Exemption 7(F) of the Freedom of Information Act…exempts from mandatory disclosure photographic records concerning allegations of abuse and mistreatment of detainees in United States custody when the government has demonstrated that the disclosure of these photographs could reasonably be expected to endanger the lives or physical safety of United States military and civilian personnel in Iraq and Afghanistan.”
Responses to the petition are now due (unless extended) on Sept. 7. The Court could consider the case within weeks after that — unless Congress changes the law in the meantime.
