The Obama administration will likely drop its Supreme Court petition challenging the release of photographs showing US soldiers abusing prisoners in Iraq and Afghanistan now that lawmakers are set to pass legislation authorizing the government to continue to keep the images under wraps.
On Thursday, the House approved a Department of Homeland Security spending bill that included a provision to amend the Freedom of Information Act (FOIA) and grant Defense Secretary Robert Gates the authority to withhold "protected documents" that, if released, would endanger the lives of US soldiers or government employees deployed outside of the country.
According to the bill, the phrase "protected documents" refers to photographs taken between September 11, 2001 and January 22, 2009, and involves "the treatment of individuals engaged, captured or detained" in the so-called "war on terror." Photographs that Gates determines would endanger troops and government employees could be withheld for three years.
The legislation now heads to the Senate for a vote, which is expected to take place as early as Thursday. Obama indicated he would swiftly sign the bill into law when it passes.
Most notably, the $42.8 billion spending bill gave President Obama the authority to transfer detainees held at Guantanamo Bay to the United States to stand trial in federal courts, a measure that Republicans tried to derail before the vote and one easily defeated by Democrats.
The bill, approved in the House by a vote of 307-114, states that detainees may be brought to the US for trial "only after Congress receives a plan detailing: risks involved and a plan for mitigating such risk; cost of the transfer; legal rationale and court demands; and a copy of the notification provided to the governor of the receiving state 14 days before a transfer with a certification by the Attorney General that the individual poses little or no security risk."
Civil libertarians and advocates of open government, however, were sharply critical of lawmakers - and the Obama administration - for covering up what they said were serious crimes by allowing the provision, the Protected National Security Documents Act of 2009, to be included in the bill.
"It is disturbing that the House would pass legislation that so blatantly undermines the Freedom of Information Act," said Michael Macleod-Ball, acting director of the ACLU's Washington legislative office. "Authorizing the suppression of evidence of human rights abuses perpetrated by government personnel directly contradicts Congress's oversight obligations. We urge the Senate to stop this provision from being enacted, and urge Defense Secretary Robert Gates not to use this provision if enacted."
The ACLU sued the government in 2003 to gain access to photographs and videos related to the treatment of "war on terror" prisoners in US custody. The US District Court for the Southern District of New York ordered the release of the photos in a June 2005 ruling that was affirmed by the Second Circuit Court of Appeals in September 2008.
The appeals court shot down the Bush administration's attempt to radically expand FOIA exemptions for withholding the photos, stating that the Bush administration had attempted to use the FOIA exemptions as "an all-purpose damper on global controversy" and "an alternative classification mechanism," which is exactly what the Obama administration, working closely with Congress, has done.
Steve Aftergood of Secrecy News said, "it is dismaying that Congress would intervene to alter the outcome of an ongoing Freedom of Information Act proceeding.
"The move demonstrates a lack of confidence in the Act, and in the ability of the courts to correctly interpret its provisions. The legislation elevates a speculative danger to forces who are already in battle above demands for public accountability concerning controversial government policies, while offering no alternative avenue to meet such demands."
The Obama administration indicated earlier this year it would abide by a court order and release at least 44 of the photographs in question, but President Obama backtracked, saying he had conferred with high-ranking military officials who advised him that releasing the images would stoke anti-American sentiment and would endanger the lives of US troops in Afghanistan and Iraq.
As Truthout previously reported, the Obama administration petitioned the US Supreme Court to hear the case at the same time that the president privately told Sens. Joe Lieberman (I-Connecticut) and Lindsey Graham (R-South Carolina) he would work with Congress to help pass a measure to ensure the photographs could be withheld. Lieberman and Graham introduced the amendment to conceal the photos earlier this year.
That revelation was made in a footnote contained in a 33-page petition the Obama administration filed with the high court in August.
According to the petition and other documents, the photographs at issue include one in which a female solider is pointing a broom at a detainee "as if [she were] sticking the end of a broomstick into [his] rectum."
Other photos are said to show US soldiers pointing guns at the heads of hooded and bound detainees in Iraq and Afghanistan. The filing also notes that the detainee abuse was investigated by the US Army's Criminal Investigation Division. It states that "three of the six investigations led to criminal charges and in two of those cases, the accused were found guilty and punished."
Supreme Court Justices were set to meet October 9 to discuss whether they intended to take up the case. However, Solicitor General Elena Kagan requested that the high court delay its decision until after the House and Senate vote on the measure. Kagan informed the high court of the latest developments in a letter sent Friday to Supreme Court Clerk William K. Suter.
"The House of Representatives voted to agree to the [appropriations bill].... We expect that the Senate will consider the [legislation next week," Kagan wrote. "If the Senate agrees to the [bill] it will be presented to the President for his approval. In light of these additional legislative developments, the Court may conclude that it would be appropriate to reschedule its consideration of the government's petition for a writ of certiorari for a subsequent conference to await further developments that may affect the appropriate disposition of this case."
Obama's decision to conceal the photos marks an about-face on the open-government policies that he proclaimed during his first days in office.
On January 21, Obama signed an executive order instructing all federal agencies and departments to "adopt a presumption in favor" of Freedom of Information Act requests, and promised to make the federal government more transparent.
"The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears," Obama's order said. "In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public."
During a speech on the House floor Thursday, Rep. Louise Slaughter (D-New York) criticized the Obama administration for failing to fully live up to its promises of "openness" and "transparency."
"I believe that we had turned a page from the cloud of suspicion and secrecy that marked the previous administration," Slaughter said. "It runs so counter to our principals and stated desire to reject the abuses of the past. The FOIA laws in this country form a pillar of our First Amendment principles."
Slaughter said in her floor statement that the provision to amend FOIA was stripped from an earlier version of the bill, but the language was quietly reinserted in recent weeks "apparently under direct orders from the administration."
"We should never do anything to circumvent FOIA, and I believe that our country would gain more by coming to terms with the past than we would by covering it up," Slaughter said. "I hope that the president will follow judicial rulings and consider voluntarily releasing these photos so we can put this chapter in history behind us."