by Josh Gerstein

From Politico | Original Article

The Obama Administration is asking the Supreme Court to block the public release of detainee abuse photos that were the subject of a high-profile reversal by President Barack Obama earlier this year.

On Friday afternoon, the Justice Department filed a petition with the Supreme Court asking it to overturn an appeals court decision requiring the Pentagon to disclose the photos, which depict alleged abuse of prisoners in U.S. military custody in Iraq and Afghanistan.

“The President of the United States and the Nation’s highest-ranking military officers responsible for ongoing combat operations in Iraq and Afghanistan have determined that disclosure by the government of the photographs at issue in this case would pose a significant risk to the lives and physical safety of American military and civilian personnel by inciting violence targeting those personnel,” Solicitor General Elena Kagan wrote.

The photos are being sought by the American Civil Liberties Union as part of a long running Freedom of Information Act lawsuit pertaining to alleged abuse of detainees held abroad by U.S. forces.

Kagan said a federal appeals court misread the law when it concluded that an exemption for records whose disclosure could endanger “any individual” meant the government had to identify the specific person who could be harmed or at least a small group of people.

“The government need not disclose records causing danger to human life and safety merely because the particular victims cannot be identified in advance with a reasonable degree of specificity,” Kagan wrote. “There is no reason to believe that Congress, in enacting [that exemption] placed such a low value on human life and safety as the court of appeals’ decision would indicate in order to promote FOIA’s interest in public disclosure of agency records.”

The government’s filing says some of the photos show “soldiers pointing pistols or rifles at the heads of hooded and handcuffed detainees.” One image shows a handcuffed and hooded prisoner and a soldier who is acting “as if” he is violating a detainee with a broom handle.

The brief invokes declarations Generals David Petraeus and Ray Odierno filed in May detailing alleged risks to U.S. troops if the photos come out.

In September 2008, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit upheld a district court decision requiring the photos to be released. The appeals court ruling applied directly to about two dozen photos, but the parties agreed that whatever result the court reached with respect to those pictures would be applied to what officials have described as hundreds of other photos of detainee abuse.

That appeals court decision remained on hold until March of this year, when the full bench of the 2nd Circuit declined to re-hear the case. Soon thereafter, the White House said officials there and at the Justice Department had decided not to challenge the court rulings any further.

However, in May, Obama unexpectedly announced that he wanted to keep the pictures secret.

“It's… my belief that the publication of these photos would not add any additional benefit to our understanding of what was carried out in the past by a small number of individuals. In fact, the most direct consequence of releasing them, I believe, would be to further inflame anti-American opinion and to put our troops in greater danger,” the president said.

Critics immediately accused Obama of abandoning his pledge to run the most transparent administration in history. They also noted that the president’s remarks seemed to underscore the Bush Administration’s claim that abuse of prisoners was the fault of rogue operators rather than an expected consequence of signals top-level officials sent to get tough with detainees.

Obama’s reversal came after senior U.S. military officials weighed in and directly implored him to find a way to keep the photos under wraps.

In May, the Senate passed, without recorded objection, an amendment offered by Sens. Joseph Lieberman (I-Conn.) and Lindsey Graham (R-S.C.) that would allow the Secretary of Defense to block release of the photos for three years and to extend the secrecy for additional three year periods thereafter.

However, in June, liberal members of the House objected and managed to get the measure stripped from a supplemental wartime appropriations bill. The Senate agreed to drop the provision only after Obama spoke to senators by phone and assured them that he would do whatever he could to prevent the photos from being disclosed.

Obama left open the possibility that he might use an executive order to classify the photos in a last-ditch effort to prevent their release if the photo-secrecy legislation was not passed.

House members who want to keep the photos secret, led by Reps. Heath Shuler (D-N.C.) and Mike Conaway (R-Texas), have filed several bills similar to the Lieberman-Graham legislation.

One challenge the Justice Department faces in arguing the Supreme Court case is that the White House said explicitly earlier this year that the government’s legal case was extremely weak.

“The legal team here and at other agencies were very convinced [the case] was not winnable,” White House Press Secretary Robert Gibbs told reporters on April 20.

When Obama reversed course in May, Gibbs said Obama had looked at the legal issues in the case personally and concluded that there were compelling new arguments that Justice Department attorneys had never raised.

The appeals court which considered the case last year said the government’s arguments about the scope of the FOIA exemption for endangering an individual swept too broadly.

“It is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to encompass all United States troops, coalition forces, and civilians in Iraq and Afghanistan,” Judge John Gleeson wrote. He, and judges Peter Hall and Joseph McLaughlin, complained that the government was trying to use the exemption to set up “an alternative classification mechanism” separate from the one used to protect national security information.

"The appeals court soundly rejected all of the government's arguments for withholding the photos, and it's unfortunate that the government has chosen to contest that decision," Amrit Singh, an ACLU attorney, said in a statement e-mailed to reporters. "These photos would provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib. As disturbing as the photos may be, it is critical that the American people know the full truth about the abuse that occurred in their name."