Proposed Appropriations Bill To Give Defense Department Authority To Suppress Torture Photos

October 7, 2009 12:00 am

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Congressional Conferees Agree To Language Allowing Defense Department To Exempt Photos From Freedom Of Information Act

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WASHINGTON – According to a conference summary, House and Senate conferees today approved language for the homeland security appropriations bill that, if passed, would grant the Department of Defense (DOD) the authority to continue suppressing photos depicting the abuse of prisoners in U.S. custody overseas. The language described in the summary appears to incorporate an amendment put forth by Senator Joe Lieberman (I-CT) that would allow DOD to exempt the photos from the Freedom of Information Act (FOIA). The photos were ordered released by a federal appeals court as part of an American Civil Liberties Union FOIA lawsuit.

The ACLU has been seeking the release of the photos and other records related to detainee abuse through FOIA litigation initiated in 2003 in the U.S. District Court for the Southern District of New York. That court ordered the release of the photos in a June 2005 ruling that was affirmed by the Second Circuit in September 2008. After initially indicating that it would not appeal the Second Circuit decision and would release the photos, the Obama administration abruptly reversed its position in May and asked the Supreme Court to hear an appeal. The Supreme Court is expected to conference on whether it will hear the Obama administration appeal of the Second Circuit ruling on October 9.

The following can be attributed to Jameel Jaffer, Director of the ACLU National Security Project:

“Congress should not give the government the authority to hide evidence of its own misconduct, and if it does grant that authority, the Secretary of Defense should not invoke it. If this shameful provision passes, Secretary Gates should take into account the importance of transparency to the democratic process, the extraordinary importance of these photos to the ongoing debate about the treatment of prisoners, and the likelihood that the suppression of these photos will ultimately be far more damaging to our national security than their disclosure would be. The last administration’s decision to endorse torture undermined the United States’ moral authority and compromised its security. The failure of the current administration to fully confront the abuses of the last administration will only compound these harms.”

The following can be attributed to Michael Macleod-Ball, Acting Director of the ACLU Washington Legislative Office:

“We’re disappointed that conference committee members have approved this troubling legislation that will allow the government to withhold evidence of human rights abuses perpetrated by government personnel. Congress should not provide this authority.”

More information about the ACLU’s FOIA litigation is available online at

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