Congress Moves to Withhold Detainee Abuse Photos
May 26, 2009 - 5:00 PMCongress is moving to stop a federal court order that would disclose government information to the public - this time the photos of terrorist detainee abuse that President Barack Obama no longer wants to release.
Just days after Obama reversed his position on the photos, Sens. Joe Lieberman, I-Conn., and Lindsay Graham, R-S.C., backed him up by adding a rider late Thursday to the Senate's version of a $91.3 billion supplemental appropriation covering the costs of the Iraq and Afghanistan wars.
In a 5-year-old lawsuit by the American Civil Liberties Union, a physicians organization and two veterans groups, a U.S. District Court in New York and the 2nd U.S. Circuit Court of Appeals have ruled that 21 of the photos should be released under the Freedom of Information Act.
Earlier this month, Obama said he had reversed his position and would continue to fight the release in court after military commanders persuaded him that the graphic images could stoke anti-American sentiment and endanger U.S. soldiers.
The Lieberman-Graham provision would allow the defense secretary to certify to the president that release of photos or video taken between Sept. 11, 2001, and Jan. 22, 2009, of people captured by U.S. forces outside the United States would endanger lives. In such cases, the release could be prohibited for at least three years.
The House version of the supplemental appropriation bill has no such provision, and the two chambers must still agree on whether to include it in the final bill before it becomes law. Democratic aides say the White House backs the provision.
Freedom of Information groups were not vocally condemning the measure, however, because it also contains another provision, sponsored by Sen. Patrick Leahy, D-Vt., which they have long sought: Requiring that bills that exempt government data from the Freedom of Information Act explicitly say so in the future. FOIA advocates have complained that such exemptions have been slipped into bills and have been hard for them and the public to track.
This is at least the third time Congress has moved to overturn specific FOIA court rulings involving a limited set of government records.
In 1981, after losing in the district and appeals courts repeatedly, the government was ordered to turn over to tax researcher Sue Long the results of the Internal Revenue Service's taxpayer compliance measurement program audits. These are the most intense audits the government conducts of taxpayers and are used to set numerical standards for selecting which tax returns to audit.
Late at night, Reagan administration Deputy Attorney General Ed Schmults persuaded Rep. Charles Rangel, D-N.Y., to include a provision in the Economic Tax Recovery Act of 1981 to prevent release of any information related to audit standards that the Treasury secretary concludes could impair tax enforcement.
Long, now co-director of the Transactional Records Access Center at Syracuse University, said in an interview the provision was submitted under a closed rule that required members to vote against the entire bill if they opposed that provision.
"It's sad to say but that's how the game is played," Long said. "It would be better to have it done more democratically, rather than in a hushed way without debate."
More recently, Congress inserted into an appropriations bill a provision overturning a 7th U.S. Circuit Court of Appeals ruling that would have disclosed information from the Bureau of Alcohol, Firearms, Tobacco and Explosives database on firearm traces.
Also, in a more widely applicable 1974 amendment to FOIA itself, Congress overturned a 1973 Supreme Court ruling that said federal judges couldn't review executive branch classification decisions.
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