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U.S. plans appeal on abuse photos

The Obama Administration has decided to go to the Supreme Court — if Congress does not act first — to stop public disclosure of an array of U.S. Army photos that apparently show severe abuse of terrorist detainees in Iraq and Afghanistan.  The Justice Department on Thursday asked the Second Circuit Court to put a ruling ordering release on hold because the Solicitor General has decided to appeal to the Supreme Court “absent intervening legislation.”

A motion to recall the Circuit Court mandate, along with other court papers, can be found here.  This was the latest legal maneuver by the Administration since President Obama changed his mind, from agreeing to release the photos to opposition to their disclosure.

The Second Circuit ruled last September, in American Civil Liberties Union, et al., v. Department of Defense (docket 06-3140), that the photos must be released under the Freedom of Information Act.  After the Circuit Court refused in March to rehear the case en banc, the Administration decided not to take the case on to the Supreme Court, and the Circuit Court issued its mandate.

The President decided this month, however, that release of the photos “would pose an unacceptable risk of danger to U.S. troops in Afghanistan and Iraq.”  A federal judge in New York was then advised of the switch in position.  Shortly afterward, the Senate took up legislation to block the release — the Detainee Photographic Records Protection Act — by changing the language of the Freedom of Information Act.

The Senate adopted that provision May 21 as part of a new government funding bill.  The House version of that bill does not include the photos provision, but the Senate has asked for a conference with the House to work out the differences between the two bills — an action expected to occur early in June.

The deadline for filing a petition for review in the Supreme Court is now June 9.  Under the Court’s Rules, if the Administration wanted a postponement of the filing deadline, it would have to ask for an extension ten days before the deadline — that is, in this case, by no later than this weekend.

In the motion filed in the Circuit Court Thursday, Solicitor General Elena Kagan and other Justice Department officials noted that, if both houses of Congress adopt the FOIA amendment, the Defense Secretary would be allowed “to preclude release under FOIA of the photographs at issue in this case.”

“If the aforementioned bill does not become law by the deadline for seeking Supreme Court review, the United States will file a petition for a writ of certiorari,” the motion said. “Recalling the mandate would serve the important purpose of preserving the status quo pending a determination by the Supreme Court.”

To bolster its argument that disclosure of the photos would put U.S. troops abroad at risk, the papers included sworn statements to that effect by Gen. David H. Petraeus, the overall U.S. military commander for Iraq and Afghanistan, and Gen. Raymond T. Odierno, U.S. commander in Iraq.  (Those statements are included, in redacted form, in the papers linked above.)

At issue in the case are 44 photos that are covered by the ACLU request for release.  The Administration said in its motion, however, that the Circuit Court ruling would also apply to “a substantial number” of additional photographs.

“The potential scope of this [Circuit] Court’s ruling makes it critically important that the Supreme Court have an opportunity to address the pressing legal questions in this case,” the new filing argued.

Although the proposed legislation has not yet been enacted, the motion noted, “the Senate’s action indicates the imminent possibility of a significant change in the law that strongly reinforces the grounds for recall of the mandate.”