The Department of Defense can refuse to release photographs relating to “the treatment of individuals engaged, captured, or detained” after Sept. 11, 2001, under an amendment to the Freedom of Information Act signed into law last week by President Barack Obama. Southern District Judge Alvin K. Hellerstein had previously ruled that 21 photos from a U.S. Army investigation into abuse of detainees in Iraq and Afghanistan had to be released, a decision upheld by the U.S. Court of Appeals for the Second Circuit (NYLJ, Sept. 23, 2008).
In April, the Obama administration informed Judge Hellerstein that it would not challenge the ruling in American Civil Liberties Union v. Department of Defense, 513 F. 3d 59. However, it reversed course in May, citing “further reflection at the highest level of government” (NYLJ, May 19). The government’s stated position was that releasing the images would inflame anti-American sentiment and invite attacks on U.S. troops, as well as possibly chill future detainee abuse investigations.
