Michael C. Dorf

A Supreme Court Ruling Means Prisoner Abuse Photos Stay Secret

By MICHAEL C. DORF
Wednesday, December 2, 2009

On Monday, the U.S. Supreme Court vacated the ruling of the U.S. Court of Appeals for the Second Circuit in ACLU v. Dep't of Defense. The Second Circuit had upheld a district court's order to the Defense Department, directing it to release 21 photographs of abusive treatment of detainees in Afghanistan and Iraq.

The High Court's decision reversing that judgment is not a ruling on the merits. Instead, in their unsigned one-paragraph order, the Justices instructed the appeals court to reconsider its original decision "in light of Section 565 of the Department of Homeland Security Appropriations Act, 2010, and the certification by the Secretary of Defense pursuant to that provision."

Technically, Monday's ruling leaves open the possibility that the photos will eventually be ordered to be released. However, careful parsing of the Court's order and the documents to which it refers (and to which I have provided links in this column) shows that there is little chance that the photos will ever see the light of day.

Is that the right result? As I shall explain in this column, it is impossible to answer that question. Although there may have been a valid substantive basis for the actions of Congress and the Secretary of Defense, the procedure they followed dispensed with a key protection of the Freedom of Information Act (FOIA): judicial review of national security classifications. Without that procedural safeguard, we have insufficient assurance that national security considerations truly outweighed the public's right to information.

The Photos, the Lawsuit, and the Appeals Court Ruling

In October 2003, the ACLU filed FOIA requests seeking records relating to the treatment of prisoners held by the United States in Iraq and elsewhere. Not long afterwards, the now-notorious photographs of abusive treatment of Iraqi prisoners at Abu Ghraib came to light, but the ACLU sought additional photographs that were said to be hidden in the files of the U.S. military. These additional photos were part of files compiled by the Army itself, as part of its internal criminal investigation.

The FOIA litigation in federal district court eventually zeroed in on 29 of these photographs, and in June 2006, the district judge ordered that 21 of those 29 be released, with identifying features of the people in the photographs obscured. The district judge so ruled because FOIA's broad language requires a federal agency to make its "records"--long defined to include images--"promptly available" to the public, absent a government showing that the request falls into one of FOIA's exemptions. Here, the district judge found that none of FOIA's exemptions applied.

The Court of Appeals agreed. In light of the district judge's decision to redact identifying information, the appeals court easily affirmed the district judge's rejection of the government's argument that disclosure would violate FOIA's privacy-protective exemptions and the Geneva Conventions.

In the appeals court, the government chiefly relied on FOIA exemption 7F, which 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."

The appeals court found this exemption inapplicable for two main reasons. First, based on the context and legislative history, the appeals court concluded that, here, "any individual" means any particular individual--that is, that the government must identify at least one specific person whose life or safety could reasonably be endangered by disclosure in order to invoke the exemption. Instead, the government had simply posited that someone, somewhere, could be endangered by disclosure.

Second, and to my mind more persuasively, the appeals court thought that the government's effort to rely on FOIA exemption 7F would circumvent FOIA's approach to national security information. Under FOIA exemption 1, the government need not disclose material that is properly classified for national security purposes. However, under an executive order signed by the second President Bush and incorporated into FOIA exemption 1, records may not be classified in order to "conceal violations of law, inefficiency, or administrative error," or to "prevent embarrassment to a person, organization, or agency."

Here, the government fears that release of the 21 photos would inflame enemies of the United States, leading them to conduct additional attacks on the U.S. armed forces or American civilians. But the very reason the government fears this scenario is because the photos reveal violations of law and are otherwise embarrassing to the United States.

Thus, as the appeals court saw the case, exemption 1 does not apply, and the government should not be permitted to use exemption 7F, which was not designed for national security cases, as a means to smuggle an additional national security exemption-- one without the limits of FOIA exemption 1--in through the back door.

The Congressional Response

After the appeals court ruled, but before any disclosure of the 21 photographs had occurred, Congress changed the law. The Protected National Security Documents Act of 2009 was adopted at the end of October 2009 as part of a measure funding the Department of Homeland Security. It supersedes FOIA, protecting from disclosure any images that were taken between September 11, 2001, and President Obama's inauguration, if those images "relate[] 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," so long as the Secretary of Defense certifies that disclosure "would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States."

Secretary of Defense Robert Gates wasted little time. Two weeks after the enactment of the National Security Documents Act, he made the necessary certification (which is reproduced as Appendix B in the government's supplemental brief before the Supreme Court). Averring that he had consulted with his commanders in the field, Secretary Gates recited the statutory formula for preventing disclosure.

In its own supplemental filing in the Supreme Court, the ACLU argued that the Second Circuit had correctly interpreted FOIA, and that, at most, the Protected National Security Documents Act of 2009 provides a separate ground for withholding the photos.

By granting the government's petition for review and vacating the Second Circuit's ruling, the Supreme Court on Monday clearly rejected the ACLU's procedural argument.

What Happens Next

It is hard to imagine that the ACLU will now be able to prevail back in the lower courts, in light of the Supreme Court's ruling. The Protected National Security Documents Act of 2009 was adopted specifically to change the result in this case. Granted, separation-of-powers principles limit the ability of Congress to dictate the outcome in particular cases, but those limits do not apply where, as in this instance, the congressional intervention takes the form of a generally-worded statute that is enacted before the final appeals in the case have run their course.

Meanwhile, on the merits, the Protected National Security Documents Act of 2009 is unequivocal. It categorically declares that, upon the making of the very declaration that the Secretary of Defense has now made, FOIA shall not be construed to require disclosure of the photographs at issue. Thus, although ACLU lawyers stated publicly on Monday that they will continue to press their case in the lower courts, it is not clear that they have any arrows left in their quiver.

One possibility would be to challenge the certification by Secretary Gates as conclusory or vague because it simply restated the statutory criteria in so many words. Section (d)(1) of the Protected National Security Documents Act of 2009 requires the Defense Secretary to certify a national security risk for "any photograph" within the Act's coverage. Thus, it could be argued that a blanket certification is inadequate under the Act.

However, this course seems likely to fail. The Protected National Security Documents Act of 2009 is probably best understood as lifting the specificity requirement that the Second Circuit found in the "any individual" language of exemption 7F of FOIA. And in the unlikely event that the lower courts were to demand greater specificity from Secretary Gates, it would be a relatively simple matter for him to certify each individual photograph at issue, or for Congress to change the law once again in order to eliminate that requirement.

Readers may be wondering whether the ACLU can argue that the Protected National Security Documents Act of 2009 violates the freedom of speech or of the press. The short answer was given by Chief Justice Burger in his lead opinion in the 1978 case of Houchins v. KQED, Inc.: "The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act." In other words, the First Amendment restricts the ability of government to censor the private dissemination of information, but it does not require that the government disclose information that it possesses.

In the end, it appears that the ACLU will be left to make arguments of policy. As ACLU Legal Director Steven Shapiro put the point: "No democracy has ever been made stronger by suppressing evidence of its own misconduct." Shapiro may or may not be right about that, but even if he is right, that amounts not to a legal claim, but rather a policy argument.

The Flawed Congressional Approach

Nonetheless, interested citizens can legitimately ask whether Congress and the Secretary of Defense in fact erred as a policy matter when they effectively changed the law to prevent disclosure of the photographs.

In one way, the change in the law was justifiable. As the case was litigated, the lower courts were not permitted to directly consider the national security implications of releasing the photographs, because of the executive order forbidding application of the national security exemption in a case like this. But that understanding of FOIA may be too restrictive where the government seeks to block release of materials on the ground that release would pose a national security risk precisely because of the illegal conduct the materials reveal.

This case seems to fit that description. The government is worried--not unrealistically--that widespread dissemination of additional graphic images of Americans committing illegal acts of detainee abuse would cause some number of people to attack American civilians or military personnel. Yet the executive order does not appear to contemplate the possibility that national security interests could ever justify the continued classification of records of illegal conduct.

Accordingly, Congress might well have been justified in passing a law superseding or modifying the Bush executive order to say that no FOIA exemption shall be found satisfied where the government's sole purpose is to conceal legal violations or prevent embarrassment.

That is almost, but not quite, what Congress did in passing the National Security Documents Act of 2009. The problem with the Act is not that it allows the government to assert a national security defense against a directive to disclose evidence of legal violations; the problem is that it makes that assertion conclusive, bypassing the judicial scrutiny that FOIA ordinarily requires.

Since 1974, FOIA has authorized courts to review executive decisions classifying material on national security grounds based on in camera (i.e., secret) inspection of the material by the court, and based on the government's arguments for non-disclosure. The National Security Documents Act of 2009 eliminates that requirement of judicial review for the photos of detainee abuse, making the Defense Secretary's say-so a conclusive basis for non-disclosure.

Yet even assuming completely good faith on the part of Secretary Gates, it is unrealistic to expect him to accord sufficient weight to the public interest in the release of the photos. His job is to defend the nation, and he will therefore err on the side of non-disclosure. One justly-reviled World War II-era Supreme Court case--Korematsu v. United States--and one justly celebrated Vietnam War-era case--The Pentagon Papers Case--bring home the lesson that while military authorities should be accorded substantial deference in matters of national security, the mere mention of the phrase "national security" should not be conclusive for a court. Or, to quote more recent authority, as Justice O'Connor wrote in the 2004 case of Hamdi v. Rumsfeld, "a state of war is not a blank check for the President." Neither should it be a blank check for the Secretary of Defense.


Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.

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