Supreme Court Breakfast Briefing - Statement of Jameel Jaffer

Document Date: September 22, 2009

Supreme Court Could Review Order To Release Torture Photos In ACLU Case

Department of Defense v. ACLU arises out of a lawsuit brought under the Freedom of Information Act (FOIA) for records concerning the abuse of prisoners held by the U.S. overseas. The question before the Supreme Court is whether the government can rely on an exemption to the FOIA to withhold photographs depicting the abuse of prisoners on the basis of a general assertion that release of the photographs could provoke a violent response.


This case arises from FOIA requests filed by the ACLU and other advocacy groups after news organizations reported that prisoners held by the Defense Department and CIA had been abused, tortured, and in some cases killed in custody. The FOIA requests, filed in October 2003 and May 2004, have resulted in the disclosure of thousands of pages of government documents – among them e-mails written by FBI agents who witnessed abuse at Guantánamo; interrogation directives signed by senior military and civilian officials; autopsy reports relating to prisoners who were killed in the course of interrogations; and legal memoranda authored by attorneys in the Office of Legal Counsel. Among the records the government has withheld, however, are photographs depicting the abuse of prisoners by U.S. military personnel in Afghanistan and Iraq.

The ACLU filed a lawsuit to enforce its FOIA requests in June 2004. At that time, nine months had passed since the filing of the first request, but the only record that the government had released was a five-page set of talking points authored by the State Department. In August 2004, the district court ordered the government to search for records responsive to the ACLU’s requests and to review those records for possible release. The ACLU specifically asked the government to search for, and review, a set of prisoner abuse photographs and videos that Army Specialist Joseph Darby had provided to Army investigators, a subset of which had been published by media organizations in April 2004. The published photographs depicted prisoners at the Abu Ghraib prison in Iraq who had been stripped naked, sexually humiliated, held in “stress positions,” and threatened with dogs.

The government refused to release the photographs, citing the prisoners’ privacy rights. More than two months after oral argument, the government offered an additional justification for withholding the photos: that the photos fell under one of FOIA’s law enforcement exemptions – Exemption 7(F), which provides that law enforcement files can be withheld if their disclosure “could reasonably be expected to endanger the life or physical safety of any individual” – because they could be exploited as propaganda and their disclosure could endanger U.S. troops, coalition forces, and civilians in Iraq and Afghanistan.

Court Proceedings

The district court rejected the government’s arguments, agreeing with the ACLU that prisoners’ privacy interests could be accommodated by redacting identifying features from the photos and that Exemption 7(F) could not be stretched to authorize the withholding of evidence of governmental misconduct based solely on general assertions of harm that might attend its potential use as propaganda.

The Darby photographs were published on the Internet by a third party before the Second Circuit could hear the government’s appeal, but the legal issues were eventually presented to the appeals court because the government acknowledged that it possessed other photos responsive to the ACLU’s FOIA requests.[1] A unanimous panel of the Second Circuit reached the same conclusion as the district court and ordered the photos released, writing that the law enforcement exemption invoked by the government was never intended to serve as “an all-purpose damper on global controversy.” After the Second Circuit denied the government’s petition for rehearing en banc, the Obama administration said that it would release the photos. On May 13, however, the government announced that it had reconsidered its position and would petition the Supreme Court for certiorari. It did so on August 7.

In its petition, the government asserts that the appeals court erred in finding that Exemption 7(F) does not apply to the prisoner abuse photos.[2] It contends that the exemption applies because it has established that the photos could be used as propaganda and that their release could reasonably be expected to result in violence. In its view, the exemption does not require it to specifically identify any individual – or even a small group of individuals – who might be endangered by disclosure. It is enough, it says, that the disclosure of the photos could reasonably be expected to provoke someone, somewhere, to harm U.S. troops, coalition forces, or civilians in Iraq and Afghanistan.

The theory the government urges the Supreme Court to endorse would turn FOIA on its head and shut down that Act precisely where transparency is most important: in cases involving evidence of governmental misconduct. Indeed, as the ACLU’s brief in opposition notes, the government’s theory would afford the greatest protection from disclosure to records that depict the worst governmental misconduct. The government’s theory is also inconsistent with the plain language of Exemption 7(F), its statutory context, its legislative history, and the overwhelming weight of the relevant case law. While Exemption 7(F) does not require the government to name a specific individual who could reasonably be expected to be endangered by disclosure, the exemption requires the government to identify with reasonable specificity the people who would be endangered by the release of identifying information. In fact, virtually all of the cases that have upheld the government’s reliance on Exemption 7(F) have involved law enforcement records that themselves identified, at least inferentially, the individuals whom the government asserted would be harmed by disclosure. Further, as the appeals court noted, the government’s construction of Exemption 7(F) would effectively turn that law enforcement exemption into an alternative classification system, allowing the government to withhold records on national security grounds without observing the substantive or procedural safeguards set out in FOIA’s national security exemption.[3] The appeals court was right to hold that the government had not offered a lawful justification for withholding the photos.

The Supreme Court is expected to consider the case at its September 29 conference.

The ACLU’s brief to the Supreme Court opposing certiorari can be found on the ACLU Web site at /safefree/torture/40939lgl20090908.html

[1] The government has since acknowledged that it possesses “a substantial number” of other photographs responsive to the ACLU’s requests.
[2] The government raises only the Exemption 7(F) argument; it does not pursue its argument relating to detainees’ privacy rights.
[3] The government has not classified the photos; accordingly, the lower courts did not have occasion to consider the scope of the government’s authority to withhold records – including photographs – under FOIA’s national security exemption.

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