Defense Secretary Robert Gates in mid-November invoked his new authority under the law to keep the photos concealed, saying that distribution of the photos would endanger U.S. troops abroad.

The Associated Press reports that the ACLU vows to continue fighting for the photos’ release.

President Obama initially agreed to release the photos, but changed his mind after consulting with Defense Secretary Robert Gates and others at the Pentagon, who warned the photos would endanger U.S. servicemen in Iraq and Afghanistan. Two federal courts have already heard and rejected that argument, however, ruling that the Freedom of Information Act can’t be trumped by citing unspecified dangers to unspecified potential targets of the anger that the information may produce. The government has appealed that ruling to the Supreme Court.

The bill signed Wednesday is an effort to get around those court rulings, and to prevent a similar ruling from the high court.

Still, it’s not clear if passage of the new law will necessarily moot the pending court case. The lawyers could still try to challenge the new legislation or the Pentagon’s right to invoke it.

Running through the list of situations that we’ve been reporting on in which the Obama administration continues to conceal evidence of torture — from the efforts of British resident Binyam Mohamed to seek justice for his “extraordinary rendition” and torture; to the administration’s continued efforts to dismiss cases alleging government-sponsored torture and illegal wiretapping by raising the “state secrets” privilege; to President Obama’s continued insistence on hiding photos of brutal detainee abuse — The Times highlights how President Obama, despite his grand promises of openness and accountability in the early days of his administration, has caved to Republicans and some conservative Democrats who want to bury the evidence of criminal and moral wrongdoing by the United States government.

“We do not take seriously the government’s claim that it is trying to protect intelligence or avoid harm to national security,” The Times writes. And it shouldn’t. As we’ve pointed out repeatedly at TWI, the outlines of our government’s abusive and in some cases criminal conduct is already well-known and can hardly endanger us further. Only by unearthing, acknowledging and accounting completely for the past can the new administration finally move beyond it to focus, unencumbered, on making sure it does not happen in the future.

Here’s what Jameel Jaffer, Director of the American Civil Liberties Union National Security Project, which has been fighting for release of those photos, had to say about the vote:

We are deeply disappointed that the House voted to give the Defense Department the authority to hide evidence of its own misconduct, and we hope the Senate will not follow suit. If this bill does become law, the Secretary of Defense should not invoke it. Instead, Secretary Gates should be guided by 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 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.

You can find the roll call here.

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 Aftergood in 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.

After the jump, Slaughter’s full remarks made this morning on the House floor about why FOIA should not be amended and the photos should not be concealed. 

There are few things that say more about our country and our trust in the public’s right to know than the Freedom of Information Act.

It’s one of the most powerful statements of openness and transparency we have. It affords ordinary people the ability to peer behind the curtains of power and see inside the many bureaucracies that define the federal, state and local governments in this country.

It’s a symbol for all that despite anything else that our government does in the name of the people, there should be no secrets.

Over the years, FOIA laws have been used for a wide range of purposes. FOIA helped us discover the ugly truth about the use of Agent Orange in Vietnam, Laos and Cambodia during the 1960′s. And FOIA was also used to uncover data showing that Ford Pintos were built with serious fuel

system defects that made them more prone to fire and explosions.

In some ways, FOIA is simply a reminder to the public that there is an avenue to pursue if they believe the government is keeping secrets. At the heart of FOIA is the concept that the people’s right to know is more important than the government’s desire to keep things secret.

The FOIA laws in this country have enabled reporters and citizens from all spectrums access to information that otherwise might never see the light of day.

Signed into law by President Johnson in 1966, FOIA laws allow for the full or partial disclosure of information and documents with only a narrow list of exemptions.

So it was with some dismay when we learned recently that the House and Senate conferees on the Homeland Security appropriations bill had slipped in a provision that gives the government the option of making old photos of detainee abuse exempt from FOIA laws.

This case has already followed a lengthy path, beginning with a lawsuit filed by the ACLU against the Pentagon. Last spring, when it appeared that the lawsuit might go against the government, this Administration responded by asking some members of the House and Senate to insert language into legislation to make sure the photos stay secret.

Joining the ACLU against the Pentagon was the American Society of News Editors, The Associated Press, Cable News Network, Inc., the E.W. Scripps Company, Gannett Co., Inc., the Hearst Corporation, Military Reporters and Editors, the National Press Club, NBC Universal, Inc., the New York Times Company, the Newspaper Association of America, the Newspaper Guild-CWA, the Radio-Television News Directors Association, the Society of Professional Journalists and The Washington Post.

Never mind that the photos in question likely have very little value, given that a similar set of photos showing abuse were released under the Bush Administration. Despite some complaints that releasing the photos would put servicemen and women in danger, the fact is there was absolutely no increase in violence or attacks after the previous detainee photos were released. My guess is that if we were to release new photos the result would be the same.

And many observers argue that releasing the photos was actually a clear break from the abuses of the past – and a signal to our allies and everyone else that the days of this type of detainee mistreatment were over and that the United States is willing to come to terms with its past practices.

In June, I and other House leaders prevailed and the FOIA exemption was dropped from legislation.

However, the conferees – apparently under direct orders from the Administration – quietly put it back into the bill this month.

It’s hard for me to express how disappointed I am with that decision. I am sorry because I believe that we had turned a page from the cloud of suspicion and secrecy that marked the previous Administration. It runs so counter to our principals and stated desire to reject the abuses of the past. The FOIA laws in this country form a pillar of our First Amendment principals.

It’s unfortunate given that this Administration promised that openness and transparency would be the norm. We should never do anything to circumvent FOIA and I believe that our country would gain more by coming to terms with the past than we would by covering it up. I hope that the President will follow judicial rulings and consider voluntarily releasing these photos so we can put this chapter in history behind us.

Update: C-SPAN has video of Slaughter’s remarks, which begin shortly after the 50-minute mark here.

2nd Update: Here‘s the video.

The ACLU has been trying to get its hands on those photos, as well as other records, since 2003 through the Freedom of Information Act, which is supposed to make them public. But the Bush administration objected, and the ACLU’s been litigating the issue ever since. Although President Obama at first promised to turn over the photos, he later changed his mind, and despite two court orders to turn them over, the administration has still so far refused. It’s appealed the matter to the U.S. Supreme Court, which is supposed to decide whether to hear the case on October 9.

Some members of Congress, however, are not prepared to leave it to the courts to decide. Senator Joe Lieberman (I-Conn.) has introduced an amendment to the appropriations bill that would allow the defense department to exempt the photos of abuse from the scope of the Freedom of Information law.

Here’s part of the response from Jameel Jaffer, director of the ACLU National Security Project, from a statement released on Wednesday:

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.

If, as the latest reports indicate, Attorney General Eric Holder is serious about prosecuting the worst torture and abuse of “war on terror” prisoners that occurred during the Bush administration, then there’s some key evidence he’s going to want to take a look at:  photographs. Although Bush Justice Department prosecutors claimed they didn’t have the facts to support prosecuting anyone for the mysterious deaths and disappearances of detainees hauled out of Bagram and Abu Ghraib in body bags, the photographs – which two courts have now ordered the Obama administration to turn over – would seem likely to provide some of the missing evidence.

The photos I’m talking about are the same ones that, back in April, President Obama promised to release to the public by May. Then, after consulting with Defense Department and CIA leaders, he changed his mind. After the American Civil Liberties Union filed a Freedom of Information Act lawsuit to obtain them, the photographs were ordered released by  a federal district court in New York in 2005 and then the court of appeals in 2008; both courts agreed that the photos are critical to the public debate over torture and the U.S. government’s counterterrorism tactics, and don’t fall under any exemption to the freedom of information law. Still, the Obama administration isn’t budging.

While the case was on appeal, lawyers from the same Washington law firm that Holder was then working at, Covington & Burling, wrote a powerful brief on behalf of 22 legal experts on the laws of war arguing for the photos’ release. These sorts of images are in part responsible for the regime of international humanitarian law that we have today, they argued.

The cornerstone of modern international humanitarian law — the Geneva Conventions of 1949 — was adopted after the release of vivid images of Nazi concentration camp survivors. And it was the United States and General Dwight D. Eisenhower himself who insisted on distributing huge volumes of these photos to the media. The images of corpses, prisoner remains and emaciated survivors helped persuade nations around the world to develop and adopt new universal humanitarian norms.

It’s because images can be so powerful and can motivate action that the Obama administration now wants to suppress them.

On Friday, the Justice Department filed a petition with the Supreme Court arguing that releasing the photos of detainee abuse would so inflame public opinion against the United States abroad that it would endanger the lives of U.S. soldiers stationed in Iraq and Afghanistan.

(Initially, the government refused to turn them over on the grounds that they would violate the privacy rights of the detainees. After the ACLU and the court agreed to have the photos redacted to conceal identifying information and protect personal privacy, the government came up with this second reason to object.)

On its face, the argument sounds pretty reasonable. I have to admit that when the administration first announced its change of heart, though Glenn Greenwald, Andrew Sullivan and many others were immediately outraged, I was somewhat sympathetic. After all, the Freedom of Information Act does include an exception to releasing information if it would reasonably be expected to “endanger the life or physical safety of any individual.” The photos of abuse at Abu Ghraib were certainly alarming. And who would want to endanger the lives of U.S. troops?

Meanwhile, the Justice Department had collected sworn statements from top military generals — including General Richard Myers, then the Chairman of the Joint Chiefs of Staff and the Nation’s highest ranking military officer — saying that releasing the photos would do just that. Who are we to question the top brass?

Amrit Singh, an ACLU lawyer handling the case, answered that for me yesterday. “The argument the government has put forward is unacceptable because it would afford the greatest protection from disclosure to records that depict the worst kind of government misconduct. That is fundamentally inconsistent with FOIA. And it’s fundamentally inconsistent with democracy.”

It’s a good point. Though I want to protect our troops as much as anybody, it turns out the law wasn’t drafted to protect Americans from retaliation that might result because their country did something illegal, or even just really embarrassing. If it were, then evidence of any illegal or upsetting U.S. government conduct would be exempt from disclosure. And that would defeat the entire purpose of the Freedom of Information law.

According to the Supreme Court, the purpose of FOIA is “to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” So you can see how that would be seriously compromised by the government’s interpretation of the law here.

It turns out that when you look at the language of FOIA, the government’s interpretation doesn’t make much sense either.

Exemption 7(f) allows an agency to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information … could reasonably be expected to endanger the life or physical safety of any individual.”

But does “any individual” mean any conceivable individual out there, or some specific individual that the government can identify?

The appeals court ruled that because Congress said the release must endanger “any individual” rather than just “endanger life or physical safety” generally to be considered exempt, Congress must have meant some identifiable individual – a particular witness to a crime or subject of a law enforcement investigation, for example. If Congress had meant to include any member of a group of people who could possibly become the target of someone’s anger, it would have used the more general phrase, the court reasoned. So the court ruled the exemption doesn’t apply, and the Obama administration has to turn over the photographs.

Now, the administration faces a dilemma. When it released the Office of Legal Counsel memos written by the now-infamous John Yoo authorizing the administration to torture prisoners abroad, it wasn’t prepared for the media firestorm that erupted — and the growing public pressure to prosecute. Reluctant to face that again, Obama and senior officials in his administration are trying hard now not to stoke the fires. (Even if they can go along with a limited prosecution along the lines of what Holder has described, they certainly don’t want to face calls for prosecuting senior Bush officials.)

But it looks like they can’t legally stop this release.

Sill, they can delay it. Supreme Court review could delay the case months or even years, depending on what the court decides to do. In the meantime, other reports will be released about the Bush era anti-terror tactics. Those include the Senate Intelligence committee’s investigation led by Sen. Dianne Feinstein (D-Calif.), the report from the ethics division of the Justice Department, the Office of Professional Responsibility, on the work of the Justice Department lawyers who crafted the memos, and, of course, the 2004 CIA inspector general report I wrote about earlier that’s supposed to be released by Aug. 24.

Which raises the question whether the government will invoke Exemption 7(f) of FOIA to try to withhold that report. After all, couldn’t the government make the exact same argument about the CIA report that it’s making about the photos? You see the slippery slope we’re on.

The CIA report apparently describes cases of murder and abuse so horrific that Holder was moved to consider initiating prosecutions. And that’s despite the fact that the Justice Department under President George W. Bush investigated those cases, but decided not to prosecute them. That report must be pretty upsetting.

So don’t be surprised if we start hearing that we shouldn’t be allowed to see that one either, because someone somewhere might get hurt.

The administration could, of course, try to distinguish the report from the photographs, arguing that, essentially, a picture is worth a thousand words. The photos may be just too powerful.

When faced with the atrocities of the Nazi concentration camps at the close of World War II, Eisenhower found that words failed him:

I have never felt able to describe my emotional reactions when I first came face to face with indisputable evidence of Nazi brutality and ruthless disregard of every shred of decency. Up to that time I had known about it only generally or through secondary sources. I am certain, however that I have never at any other time experienced an equal sense of shock . . . as soon as I returned to Patton’s headquarters that evening I sent communications to both Washington and London, urging the two governments to send instantly to Germany a random group of newspaper editors and representative groups from the national legislatures. I felt that the evidence should be immediately placed before the American and British publics in a fashion that would leave no room for cynical doubt.

-Dwight D. Eisenhower, Crusade in Europe (1977), at 408-09.

One can only conclude that the Obama administration is taking refuge in that doubt, or is not prepared to face the consequences in this country once the veil of doubt is lifted.

NEW YORK – The government today asked the U.S. Supreme Court to hear its appeal of a court ruling requiring the release of photos depicting the abuse of prisoners held in U.S. custody at overseas locations. In September 2008, the U.S. Court of Appeals for the Second Circuit ordered the government to turn over the photos in response to an ACLU Freedom of Information Act (FOIA) lawsuit. The Obama administration originally indicated that it would not appeal that decision and would release the photos, but abruptly reversed its position shortly before the agreed-upon deadline.

“The appeals court soundly rejected all of the government’s arguments for withholding the photos, and it’s unfortunate that the government has chosen to contest that decision,” said Amrit Singh, staff attorney with the ACLU. “These photos would provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib. As disturbing as the photos may be, it is critical that the American people know the full truth about the abuse that occurred in their name.”

Happy weekend!

Fick was about contending that Afghans don’t really care so much about broader Islamic movements. But still: if it’s not so problematic to broadcast television shows about Americans beating the crap out of Muslims in the name of counterterrorism, the Obama administration might as well release those torture photos. Not that Fick thinks that it ought to; this is just a weird, weird anecdote.