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Defense Secretary Robert M. Gates ruled on Friday that 44 photos that reportedly show abuse of detainees by the U.S. military in Iraq and Afghanistan cannot be released publicly. The Obama Administration notified the Supreme Court on Friday evening of this action by the Pentagon leader, and urged the Court to set aside a lower court ruling directing release of those photos. The new brief was filed in Defense Department v. American Civil Liberties Union (09-160).

The Court may act on the new filing as early as next Monday.

The Pentagon had appealed the case to the Supreme Court, to get a ruling on whether the photos at issue are exempt from mandatory disclosure under the federal Freedom of Information Act. The government was relying on Exemption 7(F) of the Act, which protects law enforcement records that, if released, could be expected “to endanger the life or physical safety of any individual.” The Second Circuit Court, however, ruled that this exemption only applies if a government agency identities at least oen specific individual who would be endangered, and it concluded that the Pentagon had not done so.

While the Pentagon petition was pending at the Court, however, Congress passed an amendment to FOIA, explicitly to overrule the Second Circuit ruling so far as it applied to the 44 military photos, some of which have been made public and some of which have been used in criminal prosecutions within the military. The new law, signed by Presi... >>>