SCOTUS to Consider Abuse Photos and Uighurs’ Release Tuesday
Among the cases the Supreme Court will consider reviewing in its private meeting tomorrow are two controversial cases arising out of the war on terror. Both question whether the president’s authority over detainees and information about their treatment is absolute, or reviewable by the federal courts.
The first and better-known case involves whether the executive branch has the right to refuse to release photos of detainees abused by U.S. officials in overseas prisons simply because it fears the photos could spark violence against U.S. troops. Lawyers for detainees, such as American Civil Liberties Union attorney Amrit Singh, have insisted that the photographs “provide visual proof that prisoner abuse by U.S. personnel was not aberrational but widespread, reaching far beyond the walls of Abu Ghraib,” and therefore their disclosure is “critical for helping the public understand the scope and scale of prisoner abuse as well as for holding senior officials accountable for authorizing or permitting such abuse.”
Meanwhile, Republicans and others have argued that the photographs’ release “will serve no public good, but will empower al-Qaeda propaganda operations, hurt our country’s image, and endanger our men and women in uniform,” as Sens. Lindsey Graham (R-S.C.) and Joseph Lieberman (I-Conn.) wrote to President Obama in May. Days later, Obama announced that he had changed his mind and decided not to release the photos, although he’d previously agreed to turn them over. Whether potential “harm” to the troops by unspecified persons abroad is sufficient to trump the public interest in access to information embodied in the Freedom of Information Act is the question the Supreme Court will consider, if it decides tomorrow to review the case.
The second big terror-related case questions whether a court can order the U.S. government to release Guantanamo detainees into the United States if the court has already determined that the government has no right to keep holding them and the government has not found anywhere else for them to go. The situation arises in the case of the Chinese Muslim Uighurs, all of whom have all been cleared for release. Although four were released to Bermuda earlier this year, 13 remain imprisoned at Guantanamo Bay because they cannot return to China, where they would likely face persecution. The United States has refused to accept them. The D.C. Circuit Court earlier this year ruled that the courts cannot order them released into the United States; only the president and the Department of Homeland Security have that power.
Perhaps in an effort to keep the issue away from the Supreme Court, the administration last week announced that the Pacific Island nation of Palau had agreed to take most of the remaining Uighur prisoners that have yet to be released. But it did not agree to take one of the 13 prisoners left, who is reportedly mentally ill. He and his brother, then, will remain at Guantanamo. If Palau had taken all of them, their case — and the Supreme Court’s chance to review the president’s authority — would have become moot.
What’s remarkable about both cases is that the Obama administration has taken essentially the same position as did the Bush administration before it. Tomorrow the high court will decide whether it will review and potentially reverse those positions, as it has in several other key rulings that dealt a blow to the Bush administration’s counterterrorism policies regarding executive power and the treatment of war-on-terror detainees.