For Now, Photos of Abuse Remaining Confidential
On Monday, the Supreme Court released its first decision of the term, vacating a Second Circuit ruling that would have required the government to make public photos depicting abuse of prisoners in Iraq and Afghanistan.
The decision, just three sentences long, sent the case back to the Court of Appeals to be reassessed in light of a new law which might allow the Secretary of Defense to block the pictures' release. In vacating this ruling, the Supreme Court made no real decision as to the merits of the case; rather, it simply ordered the new law (which was passed by Congress specifically to address this case) be taken into account.
The case was initially brought by the ACLU under the Freedom of Information Act (FOIA) through which American citizens and organizations can request disclosure of previously unreleased, nonpublic government documents. The Obama Administration's position both initially and in its appeal of the Second Circuit ruling relied on an exemption to FOIA in which "information compiled for law-enforcement purposes" can be withheld if it "could reasonably be expected to endanger the life or physical safety of any individual."
Given that the photos portrayed graphic and disturbing images of abuse - according to a government brief, some of the photos showed everything from violent to even sexual acts - the Administration asserted that they would imperil American forces abroad. The Second Circuit ruled that, if accepted in this case, the exemption cited by the Administration would create an overly-broad standard for suppressing information from the American public.
There is and must be a fundamental tension between the needs of the public in a free democracy and the needs of the State in preserving that freedom. That tension drives debate, fosters passion for the issues, and in due course causes national growth. And yet, there must ultimately be a balance between civil liberties and national security. As Jews, we are compelled by our own body of law to believe that the political climate must remain open and free. Yet set against this belief is the principle of Pikuach Nefesh, saving a life, for which nearly any commandment can be violated.
These questions arise, certainly, but they cannot paralyze us in our continuing effort to preserve our values and our safety. I am intrigued by the ACLU's comment in its response to the Supreme Court's decision, "No democracy has ever been made stronger by suppressing evidence of its own misconduct."