WASHINGTON — The Supreme Court on Monday vacated a lower court ruling that would have required the government to release photographs showing the abuse of prisoners in Iraq and Afghanistan.The decision was three sentences long and unsigned, and it followed the enactment of a law in October allowing the secretary of defense to block the pictures’ release. The Supreme Court sent the case back to the lower court, the United States Court of Appeals for the Second Circuit, in New York, for further consideration in light of the new law.
| The Second Circuit will find a way to declare the new law unconstitutional and send it back to the Supremes ... |
But President Obama overruled his lawyers, saying his national security advisers had persuaded him that releasing the photos would inflame anti-American sentiment abroad and endanger American troops. Some of the pictures, according to a government brief, showed “soldiers pointing pistols or rifles at the heads of hooded and handcuffed detainees,” a soldier who appears to be striking a detainee with the butt of a rifle, and a soldier holding a broom “as if sticking its end” into a prisoner’s rectum.
In the Second Circuit, the government relied on an exemption to the freedom of information law that applies to “information compiled for law enforcement purposes” that “could reasonably be expected to endanger the life or physical safety of any individual.”
Judge John Gleeson, writing for a unanimous three-judge panel of the Second Circuit last year, said the exemption required a specific anticipated danger. The exemption “may be flexible, but it is not vacuous,” Judge Gleeson wrote. Referring to “a population the size of two nations and two international expeditionary forces combined,” he said, is insufficient.
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The Supreme Court’s summary order in the case, Department of Defense v. A.C.L.U., No. 09-160, did not address whether that ruling was correct. It merely said the new law required reconsideration of the case. The law applies to photographs taken from Sept. 11, 2001, to Jan. 22, 2009, showing “the treatment of individuals engaged, captured or detained after Sept. 11, 2001, by the armed forces of the United States in operations outside of the United States,” so long as the secretary of defense certifies that disclosure “would endanger citizens of the United States, members of the United States armed forces or employees of the United States government deployed outside of the United States.”
Robert M. Gates, the secretary of defense, signed the required certification on Nov. 13.
| That should settle it but it won't since the ACLU is intent on tearing down completely any response to terrorism ... |
The courtÂ’s brief order indicated that Justice Sonia Sotomayor, who until recently was a judge on the Second Circuit, did not participate in MondayÂ’s decision. Judge Sotomayor was not a member of the appeals court panel that ordered the photos released.
The A.C.L.U. issued a statement saying it would continue to fight for disclosure of the pictures.