FOIA Facts: The Detainee Photo Issue - Is it What it Seems?By Scott A. Hodes, Published on June 14, 2009
President Obama recently reversed an earlier position and gave permission for the continue to fight the release of detainee photos in a FOIA lawsuit. Many advocates for openness claim this reversal is a surrender by the President and a defeat for his transparency policies that he announced in January. I’m not so sure.
As background, the lawsuit was brought by the ACLU in federal district court in New York. The Court agreed with the plaintiff and said the photos should be released pursuant to the FOIA. Ultimately, the Second Circuit Court of Appeals agreed with that decision. This is when the President entered the fray and announced that the photos would be released. Senators and senior military officials reportedly lobbied him on the decision and he soon announced that the government would continue to fight their release. The reason was stated that the release of the photos would inflame those fighting our soldiers and therefore, release would not be in the interests of the country. As a side note, I have consistently argued that these should be released, but that is not the purpose of this article and my reasons for release will not be argued here.
But anyone who knows anything about litigation, especially FOIA litigation, knows that this is not nearly the end of the argument and fighting the release of the photos will be an uphill struggle for the government at this point. As the Appeals Court has already ruled, the only court left for the issue is the Supreme Court. No further evidence can be entered at this stage - only matters brought before the lower courts (which ruled against the government) can be used for the government to try to win the case on its third bite of the apple.
The President, a constitutional lawyer, who knows procedure before the court, is fully aware of the obstacles awaiting the government. He knows that his decision to allow the Justice Department to move this along isn’t the same as fully withholding the material. And this, I believe is his strategy - appeasing those who want to withhold the information by allowing the government to continue to fight it, but knowing that the chances of success are fairly low. Is it what I would have done, no. Will it make anyone happy? Probably not. But it is a political solution to a problem caused by the FOIA and I don’t think it is a signal that the President’s recently announced transparency and openness policies are coming to a close.