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US defense department head bars public disclosure of detainee abuse photos

[JURIST] US Defense Secretary Robert Gates [official profile] on Friday invoked his authority to bar public disclosure of about 40 photos depicting the abuse of Afghan and Iraqi detainees by US soldiers. The move was followed by a notification and request by the Obama administration asking the US Supreme Court [official website] to set aside [petition, PDF] the decision of the US Court of Appeals for the Second Circuit [official website], which affirmed [JURIST report] the district court's ruling that the government must release the photos. Gates's ability to invoke this authority is pursuant to section 565 of the Department of Homeland Security Appropriations Act of 2010 [HR 2892 materials], signed into law [JURIST report] by President Barack Obama in late October. According to the brief:

The Act and the Secretary's certification require that the photographs currently at issue in this case be exempt from mandatory disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. 552. The judgment of the court of appeals therefore should be vacated and the case remanded to the court of appeals for further consideration in light of the new legislation and the Secretary's certification.

The American Civil Liberties Union (ACLU) [advocacy website] expressed disappointment [press release] at Gates's decision.

The detainee abuse photos [JURIST news archive] are now part of the records of the Department of Defense and the Department of the Army. In August, the Obama administration petitioned the US Supreme Court [JURIST report] to overturn the district court's order, alleging that this could lead to further violence in Iraq and Afghanistan that would endanger US civil and military personnel. In spite of its previous ruling, the Second Circuit ruled in June that the US government could continue to withhold photos [JURIST report] of alleged detainee abuse while it awaits a response from the Supreme Court. The original court mandate to release the photos came from a Freedom of Information Act (FOIA) [text] challenge successfully brought by the ACLU in 2005.

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