Federal Judiciary

Way cleared for abuse photos appeal?

By Akin Gump Supreme Court Practice Group

Congressional efforts to pass a new law that would bar the court-ordered public release of an array of U.S. Army photos apparently showing severe abuse of terrorist detainees appears to have broken down. That may clear the way for the Obama Administration to go ahead with plans to seek the same result through an appeal to the Supreme Court — an effort that probably would not get the Court’s attention until its next Term starting Oct. 5.

The timing has been stretched out in the wake of an order Thursday by the Second Circuit Court putting on hold its earlier ruling requiring disclosure of the photos under the federal Freedom of Information Act.

The Second Circuit Court ruled last September that the photos, showing images of mistreating detainees in Iraq and Afghanistan, must be released.  President Obama had initially agreed to let the photos emerge publicly, but changed his mind on the advice of military leaders who said release would inflame passions in those two countries and endanger U.S. troops there.

The President’s aides then decided to take the issue on to the Supreme Court.  First, they asked the Second Circuit to recall its mandate, saying the September ruling might apply to a substantial number of photos beyond the 44 initially ordered disclosed.  The Supreme Court, that motion argued,  should have an oportunity to address “the pressing legal questions” at stake.

The government also sought to gain more time to pursue its appeal to the Supreme Court.  It asked Justice Ruth Bader Ginsburg, as Circuit Justice, to give the government added time to file, since Congress was considering passing retroactive legislation to block the release.  Ginsburg on May 29 put off the petition-filing deadline until July 9.

On Thursday, the Second Circuit agreed to recall its mandate.  Its order said that “the mandate is recalled and shall hereafter be stayed pending disposition of the petition for certiorari” to be filed by the government.  The order contained no explanation, but it said that “an opinion will follow.”

At almost the same time that the Circuit Court was acting, leaders in Congress decided on Thursday not to continue the effort to pass the retroactive measure to block the photos’ release.  The agreement, described as tentative but apparently necessary to gather votes to pass the underlying military spending bill to which the photos provision would be attached, was supported by the Obama Administration.

A New York Times story on the legislative agreement can be found here.

If that agreement holds, and the government gains no more time to file its Supreme Court petition, then that filing would occur by July 9.  In the meantime, however, since the Circuit Court has stayed its release mandate, the photos will not emerge, probably not until after the Supreme Court has resolved an appeal (if the congressional effort is not renewed in the meantime).

Full post as published by SCOTUSBLOG on June 12, 2009 (boomark / email).