Supreme Court decision lets Pentagon keep detainee photos secret

After losing at the Second Circuit, the Obama administration asked the Supreme Court to take up the issue and overturn the appeals court decision. At the same time, Congress effectively ended the battle by passing a measure on Oct. 28 empowering the secretary of defense to bypass any FOIA-required release if he certified that public disclosure of the photos would endanger citizens of the US, members of the US armed forces, or government officials overseas.

Defense Secretary Robert Gates made a formal declaration on Nov. 13 that the disputed photos were exempt from mandatory disclosure under FOIA.

Recognizing that action, the Supreme Court on Monday vacated the Second Circuit's decision requiring release of the photos and sent the case back to the appeals court.

An important precedent gone

The action effectively wipes away the legal precedent created by the earlier Second Circuit ruling. US Solicitor General Elena Kagan had urged the justices to summarily vacate the appeals court's decision, and then remand the case back to the lower courts for further action in light of the new law.

Jameel Jaffer, a lawyer with the ACLU, had asked the court in his own brief to simply dismiss the government's appeal and leave undisturbed the "unanimous and well-reasoned decision of the appeals court."

Mr. Jaffer said the new statute was unrelated to the legal basis of the Second Circuit's decision in the earlier FOIA case.

In its decision, the Second Circuit had rejected a broad reading of the FOIA exemption allowing the government to keep secret documents that might endanger someone. The appeals court said the government must be able to show that disclosure would endanger a particular person not just any undefined person.

The Second Circuit decision created an important legal precedent, making it more difficult for the government to keep certain documents secret under FOIA.

In contrast, the Oct. 28 law was specifically written to prevent release of detainee photos. It does not undercut the potential court-ordered release of other documents in instances where the government was claiming broad law enforcement authority to keep the information secret.

Nonetheless, the Supreme Court's order vacating the Second Circuit decision eliminates the possibility of the precedent being cited in future cases.

Justice Sonia Sotomayor, who recently joined the high court from the Second Circuit, took no part in the case.

See also:

Congress says photos of abused detainees can remain secret

Review of alleged detainee abuse to have narrow scope

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