Adam Liptak reports that the Supreme Court has vacated a Second Circuit ruling ordering the Defense Department to release photos of abused prisoners abused on U.S. custody. The Court did not rule on the merits of the case but rather ordered the lower court to reconsider the case in light of a law passed by Congress (and regrettably supported and signed by President Obama) allowing the Defense Department to bar the release of such photos despite the Freedom of Information Act.
The argument will presumably shift, then, to whether the law -- or at least its application here -- is constitutional. The case for it isn't very convincing. Supreme Court Justice Hugo Black, in his great concurrence in the Pentagon Papers case, noted that "the word 'security' is a broad, vague generality" that could be invoked to involve the widespread suppression of speech (or, in this case, to suppress knowledge about the actions of government, which is also directly relevant to the First Amendment). Similarly, the Second Circuit noted that to justify suppression claims of national security need to be more specific than those raised by the Obama administration:
Judge John Gleeson, writing for a unanimous three-judge panel of the Second Circuit last year, said the exemption required a specific anticipated danger. The exemption “may be flexible, but it is not vacuous,” Judge Gleeson wrote. Referring to “a population the size of two nations and two international expeditionary forces combined,” he said, is insufficient.
The government's reading, the judge added, would create “an alternative secrecy mechanism far broader than the government's classification system.”
Logically, it's hard to see how the law passed by Congress solves the underlying constitutional problem, although it may make the courts less likely to intervene.
--Scott Lemieux
