Four More Years?

Photos send Obama looking for a new FOIA exemption

In an unexpected policy reversal, the Obama administration today announced it would not release forty-four photos depicting prisoner abuse in at least seven different locations in Afghanistan and Iraq. The decision comes in response to the American Civil Liberties Union’s sprawling Freedom of Information Act lawsuit intended to compel their release.

“The president believes that the specific case surrounding the damage that would be done to our troops and our national security has not been fully developed and put in front of the court,” White House press secretary Robert Gibbs told reporters this afternoon.

The Bush administration made a similar argument in federal court by citing exemption 7(f) to FOIA, which allows the government to withhold law enforcement related documents which could “reasonably be expected to endanger the life or physical safety of any individual.” The government submitted that “’any’ means ‘any’” and that releasing the photos carried risks of incitement that could put soldiers lives’ at risk.

And three times, the government lost this argument. In June 2006, a district court ordered them to release the photos. The Bush administration appealed that decision, and in September 2008, a panel of judges from second district court reaffirmed the ruling in no uncertain terms. Just days after Obama’s election, the outgoing administration tried one more time, appealing to the full Second Circuit to specifically reconsider its reasoning on exemption 7(f). They lost again.

In that light, on April 23, a Justice Department lawyer informed the court that the government had agreed to release the photos on May 23.

“The Department of Justice decided based on the ruling that it was hopeless to appeal,” Gibbs explained at a briefing the next day.

But Gibbs had a different tune at today’s press conference. While the administration is still maintaining that the release could endanger troops, he said they were “not seeking an exemption for law enforcement,” and that the appeal would instead focus on “national security” concerns.

“The argument that the president seeks to make is one that hasn’t been made before,” said Gibbs.

But if the administration is ruling out 7(f), what’s left?

“That suggests exemption one to me,” says Anne Weismann, who oversaw all FOIA litigation as a senior Justice Department lawyer from 1995 to 2002.

Exemption one allows the government to withhold from FOIA requesters information properly classified “in the interest of national defense or foreign policy.”

But the government has never claimed, in all the years that the photos have been under litigation, that they were classified.

“It’s not so unusual for something to be classified after it’s requested,” says Meredith Fuchs, a lawyer with the National Security Archive, a research organization that makes extensive use of FOIA. “Courts are quite deferential when agencies classify information.”

But there are some obvious and serious challenges to claiming classification of these photos now. Rather than appeal the case to the Supreme Court, the Justice Department volunteered to release them less than a month ago. And the administration already released memos that might describe what the pictures illustrate.

As the Second Circuit pointed out in its ruling, materials cannot be classified in order to “conceal violations of law, inefficiency, or administrative error” or to “prevent embarrassment to a person, organization, or agency.”

“I think they’re going to have a hard burden,” says Weismann, now chief counsel of Citizens for Responsibility and Ethics in Washington. “Even Bush didn’t classify these pictures.”

Weissman says that the ACLU is lucky to be litigating its case in the New York-based Second Circuit, which is less deferential to national security claims than the D.C.-based courts. But she adds that the Justice Department will likely earn the right to make its new argument all the way back in district court.

“Ultimately, they may not win. But that’s ultimately,” she says. “It’s three or four years down the line.”

UPDATE 5/14: Several minor corrections were made to Gibbs’s quotes after the official briefing transcript was released.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.