House and Senate conferees last week approved legislation that would preempt the Freedom of Information Act and permit the Secretary of Defense to withhold from release photographs and other visual media if he determines that their public disclosure “would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States.”
The new provision, contained in the 2010 Department of Homeland Security Appropriations Act, was adopted to thwart a successful FOIA lawsuit brought by the American Civil Liberties Union seeking release of certain photographs documenting the abuse of detainees held in U.S. military custody. A federal appeals court ruled (pdf) last year that the unclassified photographs are not exempt from the FOIA and must be released.
The Obama Administration, prodded by Senators Lieberman and Graham and with the support of some senior military officials, petitioned (pdf) the Supreme Court last August to overturn the ruling. “The disclosure of those photographs could reasonably be expected to endanger the lives or physical safety of United States military and civilian personnel in Iraq and Afghanistan,” the Administration argued. But Congress acted first, and Solicitor General Elena Kagan asked the Court (pdf) on October 8 to suspend its consideration of the petition.
From an open government point of view, 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 suppression of these photos will ultimately be far more damaging to our national security than their disclosure would be,” suggested Jameel Jaffer of the ACLU.
On the other hand, legislative intervention to block release of the photos might not be the worst possible outcome. A worse scenario would be if the Supreme Court upheld the sweeping Obama Administration argument that other courts have rejected, and ruled that the FOIA exempts these unclassified photos simply because they may pose an unspecified danger to unspecified persons. Such a Supreme Court ruling would have left a gaping hole in the Freedom of Information Act even larger than what the Obama Administration and Congress have now created.
Meanwhile, a new military policy prohibits reporters embedded with forces in eastern Afghanistan from photographing U.S. troops killed in action, the Reporters Committee for Freedom of the Press revealed last week. See “Afghanistan Command Confirms Policy Against Images of U.S. Dead” by John M. Donnelly, CQ Politics, October 14, 2009.