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Hiding Torture Photos Weakens Democracy and Accountability

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December 1, 2009

Yesterday, the Supreme Court sent back to an appeals court in New York our Freedom of Information Act (FOIA) lawsuit for the release of photographs depicting the abuse of prisoners in U.S. custody overseas.

In 2008, the U.S. Court of Appeals for the 2nd Circuit ruled that the photos must be released to the public. However, Congress recently enacted legislation that permits the Secretary of Defense to exempt certain photos from FOIA, and earlier this month Secretary Gates invoked that authority with respect to the photos at issue in our case.

In yesterday’s development (PDF), the high court vacated the 2nd Circuit’s original decision ordering the government to release the photographs and asked that court to reconsider the case in light of the new legislation and Secretary Gates’ certification. In 2005, a district court in New York ordered the government to turn over the photos, and the now-vacated 2008 decision by the 2nd Circuit court upheld that ruling.

Although President Obama initially said that he would abide by the appeals court’s decision and release the photographs, his administration changed course earlier this year and petitioned the Supreme Court to hear the case. Before the Supreme Court could take up the issue, however, Congress enacted legislation that permits the Defense Department to exempt certain photos from FOIA.

The photos are a vital part of the public record that would show connections between government policy and the abuse of detainees in U.S.-run detention centers. We have been litigating for their release for several years.

Steven R. Shapiro, Legal Director of the ACLU, said in our press release today: “We continue to believe that the photos should be released, and we intend to press that case in the lower court. No democracy has ever been made stronger by suppressing evidence of its own misconduct.”

Disclosing the photos would only help the public to further understand the systematic abuse of detainees that took place in detention centers, and it would underscore the need for a comprehensive investigation of past abuses. Permitting the government to suppress the photos, and thereby keep secret powerful evidence of its own misconduct, sets a dangerous precedent.

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