Obama DOJ Plans New Argument on Torture Photos

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Over objections from House liberals, President Barack Obama successfully pushed a bill through Congress earlier this month that allows the executive branch to unilaterally exempt photos of detainee abuse from disclosure under the Freedom of Information Act. The law rendered moot an appeals court decision that would have forced the administration to release the photos. It was also an attempt to preempt a Supreme Court fight over the lower court’s ruling.

But the legal wrangling isn’t over. The Supreme Court must still decide whether to take up the matter. So both sides—the Obama Justice Department and the ACLU—have to hash out what the new law means for their respective arguments about the photos. It remains to be seen whether the government will still press forward with its appeal given the changed situation. On Thursday, Solicitor General Elena Kagan told the Supreme Court in a letter [PDF] that she plans to file a new brief that takes into account the new legislation, which President Obama signed that day. 

The immediate impact of Kagan’s letter is that the Supreme Court will probably postpone its decision, originally scheduled for today, on whether to take up the case. If it does eventually take up the case, it could conceivably rule that the government was right to withhold the photos under its original argument, rejected by the appeals court, that it could withhold any information that might put anyone, anywhere in danger. That decision would blow an even bigger hole in FOIA than the detainee photo legislation already has.

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DEMOCRACY DOES NOT EXIST...

without free and fair elections, a vigorous free press, and engaged citizens to reclaim power from those who abuse it.

In this election year unlike any other—against a backdrop of a pandemic, an economic crisis, racial reckoning, and so much daily crazy—Mother Jones' journalism is driven by one simple question: Will America will move closer to, or further from, justice and equity in the years to come?

If you're able to, please join us in this mission with a donation today. Our reporting right now is focused on voting rights and election security, corruption, disinformation, racial and gender equity, and the climate crisis. We can’t do it without the support of readers like you, and we need to give it everything we've got between now and November. Thank you.

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