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Congress seeks to head off Supreme Court case on detainee photos

A measure up for a vote soon would authorize the Defense secretary to withhold the photographs from the public. The ACLU says that's no reason to delay the case.

October 11, 2009|Associated Press

WASHINGTON — Congress is set to allow the Pentagon to keep new pictures of foreign detainees abused by their U.S. captors from the public, a move intended to end a legal fight over the photographs' release that has reached the Supreme Court.

Federal courts have rejected the government's arguments against the release of 21 color photographs showing prisoners in Afghanistan and Iraq being abused by Americans.

The Obama administration believes that giving the Defense secretary the imminent grant of authority over the release of such pictures would short-circuit a lawsuit filed by the American Civil Liberties Union under the Freedom of Information Act.

The White House is asking the justices to put off consideration of the case until after a vote on the measure in the House and Senate, as early as this week. The provision, in a larger Homeland Security spending bill, would allow the Defense secretary to withhold photographs relating to detainees by certifying that their release would endanger troops or other government workers.

The ACLU said the court should not disturb a ruling by the federal appeals court in New York ordering the photographs' release. The pending congressional action "does not supply any reason for delay," Jameel Jaffer, director of ACLU's national security project, told the court.

The dispute is on a list of cases the Supreme Court could act on as soon as Tuesday.

Lower courts have ruled that a Freedom of Information Act provision allows documents to be withheld from the public for security reasons only when there are specific threats against individuals.

President Barack Obama initially indicated he would not fight the release of the photographs. He reversed course in May and authorized an appeal to the high court.

The president said he was persuaded that disclosure could further incite violence in Afghanistan and Iraq and endanger U.S. troops there.

The photographs were taken by service members in Iraq and Afghanistan and were part of criminal investigations of alleged abuse. Some pictures show "soldiers pointing pistols or rifles at the heads of hooded and handcuffed detainees," Solicitor General Elena Kagan said in the appeal to the high court.

In one, "a soldier holds a broom as if 'sticking its end into the rectum of a restrained detainee,' " Kagan said, quoting from an investigation report prepared by the Pentagon. Two investigations led to criminal charges and convictions, she said.

Kagan said that the military had identified more than two dozen additional pictures that could be affected by the court's ruling.

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