Torture Photos Politics: New Pictures Released Despite Obama Ban

One picture showed a prisoner hung up upside down while another showed a naked man smeared in excrement standing in a corridor with a guard standing menacingly in front of him. Another prisoner is handcuffed to the window frame of his cell with underpants pulled over his head.

Others yet to be released reportedly show military guards threatening to sexually assault a detainee with a broomstick and hooded prisoners on transport planes with Playboy magazines opened to pictures of nude women on their laps.

Obama did not actually decide not to release the photos, despite the way his reversal has been characterized. The decision isn't his to make. The Pentagon is currently compelled by a court order [pdf] to turn 22 photos over to the ACLU, which sued the government under the Freedom of Information Act for their release in 2003. The Pentagon lost in district court and lost again on appeal; earlier this year Pentagon lawyers decided not to appeal to the Supreme Court and struck a deal with the ACLU. The government has no say at this point in whether or not those photos get released—either the FOIA compels their release or it doesn't, and it's up to a court to decide that question. All Obama did yesterday was authorize the Pentagon to ask the Supreme Court to take the case. The Court might take the case or it might not. And if it does, it will almost certainly uphold the decisions of the district and appeals courts and order the photos to be released.

The government's argument on appeal was that the photos could be properly withheld under a FOIA provision that exempts records "compiled for law enforcement purposes" if their release could "could reasonably be expected to endanger the life or physical safety of any individual." The photos were gathered by the Army's Criminal Investigation Division to prosecute abuse, so they were clearly compiled for law enforcement purposes. And the Pentagon's argument, which Obama endorsed yesterday, is that the release of the images would "further inflame anti-American opinion and to put our troops in greater danger," which means that at least someone's life or safety would thereby be endangered. And the law, the government claimed, doesn't require them to actually identify such an individual.

Three Second Circuit Court of Appeals judges—one of which was nominated by George W. Bush and another of which was nominated by his father—have already considered and rejected that argument: "The phrase 'any individual'...may be flexible, but is not vacuous. [W]e cannot read the phrase to include individuals identified solely as members of a group so large that risks which are clearly speculative for any particular individuals become reasonably foreseeable for the group." In other words, if you are going to say that someone could be threatened by a document's release under FOIA, you have to say who, and how. The exemption was designed to prevent mob informants from getting killed, not to protect entire armies from people who already hate them and are already trying to kill them. After losing to the three-judge panel, the Pentagon asked the full Second Circuit Court of Appeals to hear the case, and the court—which is evenly divided between Republican and Democratic appointees—said no.