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ACLU seeks to salvage FOIA ruling

The American Civil Liberties Union on Wednesday urged the Supreme Court to leave undisturbed a lower court ruling that limits the government’s power to keep secret photos or documents that reveal official wrongdoing.  Thus, the ACLU argued in a new brief, the Court should deny a Pentagon request to vacate that lower court opinion.

 The case is Defense Department v. ACLU (09-160).  It involves attempts by the civil liberties group to require the public disclosure of at least 44 official photos that are said to show abuse of detainees by the U.S. military in at least seven different locations in Afghanistan and Iraq.  The Second Circuit Court ordered the photos released, over the government’s objection.  Congress has since passed a new law that enables the Pentagon to keep these specific photos from disclosure, and the Pentagon cited that law last week in urging the Court to vacate the Second Circuit ruling.

In its new filing, the ACLU contended that the new law in no way undercuts the ruling of the Second Circuit, so the Justices should simply deny review of the government’s case. Then, the Pentagon can make its case in lower courts for withholding these specific photos, but the Circuit Court’s precedent would remain on the books as an important interpretation of a key section of the Freedom of Information Act, the ACLU said.

The Circuit Court was right, the brief argued, in holding that FOIA Exemption 7(F) — allowing withholding of documents that, if disclosed, would endanger someone — “does not authorize the government to withhold prisoner-abuse photographs based upon a general assertion that release of the phtographs could provoke a violent response.”

All that the new law does, the brief added, is “raise the independent question of whether suppression of the photographs is now proper” under that change in the FOI Act.  If the Second Circuit’s interpretation of the specific exemption is left intact, it would be available “should another controversy arise” as to other documents or photos, it argued.