Supreme Court Sends ACLU Torture Photos Case Back To Appeals Court

November 30, 2009 12:30 pm

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WASHINGTON – The U.S. Supreme Court today sent back to an appeals court a Freedom of Information Act (FOIA) lawsuit brought by the American Civil Liberties Union for the release of photos depicting the abuse of prisoners in U.S. custody overseas. The U.S. Court of Appeals for the Second Circuit ruled in 2008 that the photos must be released to the public, but Congress recently enacted legislation that permits the Secretary of Defense to exempt the photos from FOIA. Defense Secretary Gates invoked that legislation earlier this month. The Supreme Court has now vacated the Second Circuit’s original decision and ordered that it reconsider the case in light of the new legislation and Secretary Gates’ certification.

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

The ACLU has been litigating for the release of the photos for several years. A district court in New York ruled in 2005 that the government had not justified the withholding of the photos, and the appeals court upheld that ruling in 2008. The appeals court denied the government’s petition for rehearing en banc in 2009. President Obama initially said that he would abide by the Second Circuit’s decision and release the photos, but his administration changed course earlier this year and petitioned the Supreme Court to hear the case. Before the Supreme Court could adjudicate the government’s petition, however, Congress enacted legislation that permits the Defense Department to exempt photos from FOIA.

“We continue to believe that the Defense Department’s suppression of these photos is both unlawful and unwise, and that there is a strong public interest in the photos’ release,” said Jameel Jaffer, Director of the ACLU National Security Project. “The photos would show connections between government policy and the abuse that took place in the detention centers. They might also show patterns that have until now gone unnoticed. Their disclosure would both discourage abuse in the future and underscore the need for a comprehensive investigation of past abuses. And we continue to believe that permitting the government to suppress information about government misconduct on the grounds that someone, somewhere in the world, might react badly – or even violently – sets a very dangerous precedent.”

The ACLU has been seeking the release of the photos and other records related to detainee abuse through FOIA litigation initiated in 2004 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.

Attorneys on the case are Shapiro, Jaffer, Alexander A. Abdo, Judy Rabinovitz and Lucas Guttentag of the ACLU; Arthur Eisenberg and Beth Haroules of the New York Civil Liberties Union; Lawrence S. Lustberg and Jenny-Brooke Condon of Gibbons, P.C.; and Gitanjali S. Gutierrez and Shayana Kadidal of the Center for Constitutional Rights.

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

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