Piggybacking off mcjoan's story, what are we talking about here? Photographs depicting abusive treatment of detainees by United States soldiers in Iraq and Afghanistan, specifically:
Whereas the Abu Ghraib photos were taken at that one location, the 29 photographs were taken in at least seven different locations in Afghanistan and Iraq, and involved a greater number of detainees and U.S. military personnel. And while many of the Abu Ghraib photos depicted unclothed detainees forced to pose in degrading and sexually explicit ways, the detainees in the 29 photographs were clothed and generally not forced to pose. The photographs were part of seven investigative files of the Army’s Criminal Investigations Command ("Army CID"), and were provided to Army CID in connection with allegations of mistreatment of detainees. In three of the investigations, Army CID found probable cause to believe detainee abuse had occurred related to the photographs at issue here. Soldiers under scrutiny in two of the investigations have been punished under the Uniform Code of Military Justice.
In June 2006, the district court determined that 21 of the 29 were deemed to document abusive behavior and should be produced pursuant to the ACLU's FOIA request; the government appealed.
On September 22, 2008, the United States Court of Appeals for the Second Circuit entered its ruling denying the government's appeal and ordering the release of the photos, and it's on that opinion that I want to dwell for a minute.
The main argument presented by the Government was FOIA Exemption 7(F). Explains the Court:
The argument defendants raised as an afterthought below is their lead argument on this appeal. They contend that FOIA exemption 7(F), 5 U.S.C. § 552(b)(7)(F) (2006), justifies withholding the Army photos and that the district court erred in concluding otherwise. Exemption 7(F) 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." Id. In relying on this exemption, the defendants contend that (a) the Army photos, which were gathered during Army CID investigations, are documents "compiled for law enforcement purposes" within the meaning of the statute; (b) disclosure of the photos could reasonably be expected to incite violence against United States troops, other Coalition forces, and civilians in Iraq and Afghanistan...."
What the 2d Cir decided in response, basically, was that the "any individual" language meant that the Government had to identify which individuals were placed at risk; it couldn't be a generic "all our soldiers in the field". See pp 9-17, which concludes:
We hold that in order to justify withholding documents under exemption 7(F), an agency must identify at least one individual with reasonable specificity and establish that disclosure of the documents could reasonably be expected to endanger that individual. We need not shape the precise contours of the exemption today, as it is not a close question whether the government has identified any relevant individual with reasonable specificity. It is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to encompass all United States troops, coalition forces, and civilians in Iraq and Afghanistan. The structure of FOIA and the applicable legislative history, both of which contemplate a far narrower role for exemption 7(F) than that envisioned by the defendants, amply confirm our holding.
The Government did not raise Exemption 1 as a defense, the one which specifically related to national security. They did, however, claim Exemptions 6 and 7(C), which pertain to protecting the personal privacy of those detainees photographed, along with the Geneva Convention requirements of protecting the dignity of detainees against "insults and public curiosity." In sum, the government's argument was that even by redacting portions of the photos to hide individual identities, that wasn't enough to protect their subjects from indignities and humiliation. The Second Circuit disagreed:
Even though we are not compelled to balance interests where there is no more than a de minimis privacy interest at stake, we note that contrary to the defendants’ suggestion there is a significant public interest in the disclosure of these photographs. The defendants concede that these photographs yield evidence of governmental wrongdoing, but nonetheless argue that they add little additional value to the written summaries of the depicted events, which have already been made public. This contention disregards FOIA’s central purpose of furthering governmental accountability, and the special importance the law accords to information revealing official misconduct. Robbins, 437 U.S. at 242 ("The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." (internal citation omitted)). ... Governmental misconduct is conceded here, (Appellants’ Br. 15 (noting that several personnel were disciplined in connection with the Army CID investigations)), and we accordingly note that the public interest in disclosure of these photographs is strong. In any event, there is no more than a de minimis privacy interest in withholding the redacted photographs.
As for the Geneva Convention argument:
The defendants’ current litigation position, however, is not at all consistent with the executive branch’s prior interpretations of the Geneva Conventions. As an initial matter, the government does not currently interpret the Geneva Conventions to prohibit dissemination of photographs or videos of detainees when those detainees are not
19 identifiable. ... The defendants argue that a photograph of abuse is so humiliating that its dissemination always opens the detainee to "public curiosity," even if the detainee cannot be identified. But this was not always the government’s interpretation of the Geneva Conventions.
At the end of [World War II], the United States government widely disseminated photographs of prisoners in Japanese and German prison and concentration camps. These photographs of emaciated prisoners, corpses, and remains of prisoners depicted detainees in states of powerlessness and subjugation similar to those endured by the detainees depicted in the photographs at issue here. Yet the United States championed the use and dissemination of such photographs to hold perpetrators accountable. ...
Further, the defendants’ contention that documentation of detainee abuse constitutes public curiosity is impossible to square with the United States’ role as the lead prosecuting party of Imperial Japanese General Sadao Araki and others before the International Military Tribunal for the Far East ("IMTFE"). In that case, the IMTFE found the Japanese Government’s censorship of photographs depicting mistreatment of prisoners of war to be evidence of the government’s complicity in war crimes, including violations of the 1929 Geneva Conventions.... The United States’ leading role in that prosecution would have been odd, to say the least, if the United States at the time took the position that the dissemination of photographs showing prisoners of war subject to mistreatment was itself a war crime.
In light of this contrary past practice, we do not defer to the government’s current litigation position concerning the meaning of the "public curiosity" provisions of the Third and Fourth Geneva Conventions.... We hold that Article 13 of the Third Geneva Convention and Article 27 of the Fourth Geneva Convention do not prohibit dissemination of images of detainees being abused when the images are redacted so as to protect the identities of the detainees, at least in situations where, as here, the purpose of the dissemination is not itself to humiliate the detainees. ...It is also the construction publicly adopted by the International Committee for the Red Cross ("ICRC"), which has "had a significant influence on the interpretation of Article 13" ...
More importantly, this construction is consistent with the purpose of furthering humane treatment of captives, which animates Article 13 of the Third Geneva Convention and Article 27 of the Fourth Geneva Convention.
... Release of the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners. To the extent the public may be "curious" about the Army photos, it is not in a way that the text of the Conventions prohibits; curiosity about "enemy prisoners being subjected to mistreatment through the streets," (Appellants’ Br. 53), is different in kind from the type of concern the plaintiffs seek to inspire.... Heightened public awareness of events depicted in the Army photos -- some of which appear to violate the Geneva Conventions -- would serve to vindicate the purposes of the Geneva Conventions without endangering the lives or honor of detainees whose identities are protected.
[The government did not argue that the soldiers willingly photographed had any privacy interests.]
On March 11, 2009, the Second Circuit issued its ruling declining to hear the case en banc. [For non-lawyers: essentially, a "super-review" by all the Judges of the Circuit, as opposed to just the three on the panel.] Following that, on April 23, 2009, the government indicated it would release those 21 photos, plus 23 more, by May 28, 2009, and that it would not be seeking Supreme Court review of the Second Circuit's decision.
Which leads us to today. By my calculations, the government has about a month left to file a petition for a writ of certiorari before the Supreme Court. As to whether the Court will review the opinion below, the question is generally whether the circuit court's interpretation of the relevant FOIA exemptions or the Geneva Conventions created a split in the governing law with its sister circuits, or has otherwise "so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power" or otherwise presents "an important question of federal law that has not been, but should be, settled by this Court." Put in other terms, the government needs four justices to believe that there are five justices who'd overturn the opinion below ... and given the way the Court operates, the nine justices involved will include Justice Souter's successor, whomever she may be.
If there's some other mechanism the government is contemplating for the consideration of new legal arguments, I'm not sure what it is.
Would you like to learn more? The ACLU Documents Relating To Abuse Photos page has all the legal documents you want, and then some.