By Stacy Allen

Sometimes, losing can still be a win. So it is for the federal government, which has once again managed to delay disclosure of U.S. Army photos allegedly depicting prisoner abuse in Iraq and Afghanistan, despite having lost repeatedly at both the trial and appellate levels in a lawsuit first brought over five years ago by the ACLU to obtain the photos under the Freedom of Information Act (FOIA). The seemingly endless twists and turns of the case (which span both Republican and Democratic administrations) are instructive to news organizations and others who might seek access to sensitive government records and showcase the clash between two compelling and often competing public interests: national security and the safety of U.S. troops versus the people’s right to know.

On June 2, 2004, the ACLU sued the government under FOIA to obtain 87 photographs that “depict abusive treatment of detainees by the United States soldiers in Iraq and Afghanistan.” American Civil Liberties Union v. Department of Defense, 543 F.3d 59, 63 & 64 (2d Cir. 2008) (ACLU). A number of those photos – including the now infamous Abu Gharib prison photos – were published online in 2006 by a third party. Later that year, the United States District Court for the Southern District of New York sided with the ACLU and ordered the disclosure of the remaining 21 photographs being withheld by the government.

The government appealed the decision to the United States Court of Appeals for the Second Circuit, relying primarily on an enumerated exemption to FOIA, which allows a government agency to withhold “law enforcement records or information” when the release of such information “could reasonably be expected to endanger the life or physical safety of any individual” (emphasis added). ACLU, 543 F.3d at 66 (quoting 5 U.S.C. § 552(b)(7)(F)). The government argued that publication of the photographs “will endanger United States troops, other Coalition forces, and civilians in Iraq and Afghanistan” and that such endangerment is sufficient to satisfy the “any individual” language of exemption 7(F). Id. at 63.

On September 22, 2008, the Second Circuit issued an opinion affirming the District Court’s order of disclosure and ruled “that in order to justify withholding documents under (FOIA) exemption 7(F), an agency must identify at least one individual with reasonable specificity and establish that disclosure of the documents could reasonably be expected to endanger that individual.” Id. at 71.

Noting that “the interest of the public in ‘greater access to information’ must be considered in determining the scope of exemption 7(F),” id. at 82, the Second Circuit found the government’s interpretation of the phrase “any individual” unconvincing:

[T]he defendants do not identify a single person and say that the release of the Army photos could reasonably be expected to endanger that person’s life or physical safety; the threat to any one person is far too speculative. What the defendants argue…is the far different proposition that it could reasonably be expected that out of a population the size of two nations and two international expeditionary forces combined, someone somewhere will be endangered as a result of the release of the Army photos.

Id. at 71. The Second Circuit concluded that such an expansive reading “would radically transform exemption 7(F) from a flexible but tailored protection for a fluid, but limited class of persons into an alternative secrecy mechanism far broader than the government’s classification system.” Id. at 83.

In rejecting the “expert affidavits” of top military officials offered by the government to prove up the danger posed by release of the photos, the Second Circuit warned that “similar affidavits could be produced with respect to many other documents in a wide range of cases, particularly controversial documents that the government might have the greatest motivation to withhold,” leading to “the perverse conclusion that the more egregious the conduct revealed by government records, the more compelling would be the government’s basis for shielding these documents from disclosure under FOIA.” Id. (quoting the ACLU’s brief).

“[t]he President, in his capacity as Commander-in-Chief, consulted with top national security advisors and has determined that release of the photographs at issue would create an unacceptable risk of danger to U.S. soldiers and U.S. military and foreign policy interests.”

Following the 2008 election and denial of the government’s motion for rehearing by the Second Circuit, the Obama administration agreed that it would release the nearly six-year old photographs by May 28, 2009. However, in reported exchange for clearing the way for passage of a spending measure providing nearly $80 billion to fund the war and foreign aid in Iraq and Afghanistan – and in reaction to the strong views of top U.S. commanders in the field and President Obama’s self-expressed concern that release of the photos would “further inflame anti-American opinion” and “put our troops in greater danger” – the government abruptly reversed its position last month by requesting the Second Circuit to stay enforcement of its 2008 order pending an anticipated petition for review by the U.S. Supreme Court.

Explaining that “extraordinary circumstances have intervened,” the government’s May 28, 2009, motion for recall of mandate included the affidavits of veteran theatre commanders General David Patreaus and General Raymond Odierno in both classified (for the Court’s eyes only) and partly redacted (for the public file) versions, which warned that the “next six to eight months are a time of particular fragility in Iraq” and that release of the photos now would “inflame emotions across Iraq” and result in “spontaneous violence against U.S. forces.” Adding even more firepower, the government brief declared that “[t]he President, in his capacity as Commander-in-Chief, consulted with top national security advisors and has determined that release of the photographs at issue would create an unacceptable risk of danger to U.S. soldiers and U.S. military and foreign policy interests.” Bowing to the added pressure, the Second Circuit blinked and issued a one-paragraph order on June 10, 2009, granting the government’s requested stay without explanation. The government now has until July 9, 2009, to file its petition for certiorari.

The Second Circuit’s spare one-paragraph explanation of its June 10 flip-flop stands in stark contrast with its earlier pronouncements on the strong public interest in timely disclosure (especially when, as here, that disclosure might prove politically embarrassing). Given its previously proclaimed skepticism of “expert affidavits,” it is particularly ironic that the Second Circuit’s about-face on its insistence that the photos be produced without further delay was presumably based in part on the generals’ affidavit testimony (with the publicly-available versions of those affidavits partially censored through redaction). Meanwhile, the government, having lost repeatedly on the merits of its national security argument, has again obtained a de facto victory by persuading the Second Circuit to stay enforcement of its earlier ruling (and thus extend the sequestration of the photos), pending the government’s petition for Supreme Court review – a process which, especially if review is granted, could itself take another year or more. By using its almost unlimited resources to doggedly pursue its appellate rights and deploying the four-star power of its generals – and the President himself as Commander-in-Chief – to drive home its position regarding the degree of danger posed to U.S. troops and interests abroad, the government has successfully withheld disclosure of the photos for almost six years (and into the future), as their newsworthiness and relevance becomes increasingly stale with the passage of time. It now appears that the U.S. Supreme Court will ultimately decide whether the long-withheld photos will ever be seen by the public (to the extent they are still news by then).

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For questions, please contact Stacy Allen or a member of the Media Law practice.