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More on the Congressional Move to Amend FOIA, Hide Torture Photos

To follow up on my earlier post about Rep. Louis Slaughter (D-N.Y.) and her speech on her colleagues’ move to amend the Freedom of Information Act to prevent

Morgan Maverick
Jul 31, 2020248 Shares8004 Views
To follow up on my earlier post about Rep. Louis Slaughter(D-N.Y.) and her speech on her colleagues’ move to amend the Freedom of Information Act to prevent the release of photographs depicting abuse of detainees in U.S. custody, it’s worth looking at the conference report on the bill.The bill is called the “Protected National Security Documents Act of 2009,” but refers not to any “documents” per se, but only to any “photograph” taken between Sept. 11, 2001 and Jan. 22, 2009, that “relates to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States.”
The provision was proposed by Sen. Joseph Lieberman (I-Ct.), as Steven Aftergood of Secrecy News explains, specifically “to thwart a successful FOIA lawsuit brought by the American Civil Liberties Union” which wants the government to turn over photos documenting abuse of detainees in U.S. military custody. I wrote about the bill and its progress last week here.Although a federal appeals court ruled last year that the government must produce those unclassified photos under the Freedom of Information Act, the government has refused, and filed a petition to the Supreme Court for review.
The Supreme Court hasn’t yet decided whether it will hear the case, though, and given that Congress may resolve the matter by hiding the unclassified photographs with this legislation, Solicitor General Elena Kagan last week asked the court to put off deciding, since it looks like Congress is prepared to decide the matter — and conceal the photographs — on its own.
“From an open government point of view, it is dismaying that Congress would intervene to alter the outcome of an ongoing Freedom of Information Act proceeding,” writes Aftergoodin his blog, which has done a terrific job of exposing the government’s efforts to hide what’s supposed to be public information. Aftergood adds that the move reveals Congress doesn’t have much confidence in its own Freedom of Information Act, the federal courts interpreting it, or the principles behind it, if it feels the need to exempt this specific set of photos from the law’s purview.
On the other hand, he notes that it could be worse: the Supreme Court could have taken the case and upheld the Obama administration’s right to exempt the photos “simply because they may pose an unspecified danger to unspecified persons.” “Such a Supreme Court ruling would have left a gaping hole in the Freedom of Information Act even larger than what the Obama Administration and Congress have now created,” writes Aftergood.
Or, of course, the Supreme Court might have just done its job, and recognized, as the two lower courts who’ve heard this case did, that unclassified documents can’t be concealed based simply on the executive’s fear that exposing government wrongdoing will incite anger at the United States and endanger national security. After all, if preventing anger at the United States were a legitimate reason to conceal unclassified information about the government, then there would be considerably less Information left for the Act to protect.
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