Absent an unexpected groundswell of opposition, Congress this week will pass legislation that gives the Defense Department the authority to suppress evidence of its own misconduct.
The legislation -- originally proposed by Sen. Joe Lieberman (I-Conn.) -- is an amendment to the 2009 Homeland Security appropriations bill that was passed by the House and is headed for a final vote on the Senate floor. The amendment is aimed at a 2008 appeals court decision requiring the Defense Department to release photographs showing Afghan and Iraqi prisoners being abused and in some cases tortured by U.S. military personnel. Its ramifications will be sweeping and will extend far beyond the specific lawsuit it is meant to quash.
The amendment is directed at a lawsuit filed by the American Civil Liberties Union to enforce a Freedom of Information Act request submitted in 2003. After a court ordered the Bush administration to respond to the request, the Defense Department acknowledged the existence of the prisoner-abuse photos but sought to withhold them from the public on the grounds that their disclosure could provoke violence against U.S. troops and others in Afghanistan and Iraq.
A federal District Court rejected that argument, and a unanimous three-judge panel affirmed that decision, reasoning that a generalized and speculative fear of violence was insufficient to justify the photos' suppression. The Obama administration, after first saying that it would release the photos, changed course and appealed to the Supreme Court, which is slated to decide this month whether to hear the case.
The legislation is meant to substitute Congress' judgment for that of the courts. Of course, the FOIA is a statute, not a constitutional provision, and Congress has the authority to amend the statute if it wants to. It is extraordinary, however, for Congress to attempt through legislation to control the outcome of individual cases. Its effort to do so here is especially disturbing because, as the appeals court noted, the release of the photos is consistent not only with the language of the FOIA -- language that Congress is now poised to revise -- but with the broader principles underlying that statute.
The basic purpose of the FOIA, the Supreme Court has previously recognized, is "to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." As the appeals court in the current case observed, the photos "place government accountability at the center of the dispute."
