At a press briefing on April 24, White House Press Secretary Robert Gibbs told reporters, "the Department of Justice [had] decided based on the [Second Circuit's] ruling that it was hopeless to appeal."
Gibbs's comment came a day after acting US attorney Lev Dassin confirmed in a letter filed with US District Court Judge Alvin Hellerstein that the Obama administration would not challenge the Second Circuit's decision.
But in May, following the long-awaited release of Bush administration torture memos that Republicans and former Bush officials sharply criticized, the Obama administration changed its position and said it would fight to keep the photographs secret, fearing that releasing it would stoke anti-American sentiment in the Middle East and put the lives of US soldiers at greater risk.
Obama's decision to fight to conceal the photos to the Supreme Court marks an about-face on the open-government policies that he proclaimed during his first days in office.
On January 21, Obama signed an executive order instructing all federal agencies and departments to "adopt a presumption in favor" of Freedom of Information Act requests and promised to make the federal government more transparent.
"The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears," Obama's order said. "In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public."
But in the Supreme Court petition Solicitor General Kagan filed Friday, the administration argued that a specific provision of FOIA allows the withholding of information if it threatens the lives of individuals.
The petition says that the Second Circuit Court of Appeals ruled that FOIA "mandates the public disclosure of such photographs - regardless of the risk to American lives - because FOIA Exemption 7(F) requires the government to 'identify at least one individual with reasonable specificity' and show that disclosure 'could reasonably be expected to endanger that individual.'"
Kagan wrote that the Second Circuit Court of Appeals misinterpreted the law when it ruled that the government had to identify specific individuals who would be harmed by the disclosure of the photographs
The Obama administration argued that Exemption 7(F), "is inconsistent with the text of Exemption 7(F), which broadly encompasses danger to 'any individual,' with no suggestion of the court's extra-textual requirement of victim specificity. The history of drafting that exemption "underscores that conclusion. Congress did not mean for public disclosure of agency records to trump the life and physical safety of individuals - particularly in a case such as this, in which the government has already made public the underlying investigative reports revealing all relevant allegations of wrongdoing and the associated investigative conclusions."
"The President and the United States military fully recognize that certain photographs at issue depict reprehensible conduct by American personnel and warranted disciplinary action," the brief states. "There are neither justifications nor excuses for such conduct by members of the military. But the fact remains that public disclosure of the photographs could reasonably be expected to endanger the lives and physical safety of individuals engaged in the Nation's military operations in Iraq and Afghanistan. The photographs therefore are exempt from mandatory disclosure under FOIA. Review by this Court is warranted to give effect to Exemption 7(F) and the protection it affords to the personnel whose lives and physical safety would be placed at risk by disclosure."
The ACLU said in its opposition brief that the Obama administration's "argument here would turn FOIA on its head by affording the greatest protection from disclosure to records that depict the worst governmental misconduct."
The Obama administration's arguments against disclosure are not that much different from the Bush administration's, and have, as the ACLU noted, been rejected by Second Circuit Court of Appeals. The appeals court said threats needed to be specific in order to justify withholding information.
The appeals court also shot down the Bush administration's attempt to radically expand FOIA exemptions for withholding the photos, stating that the Bush administration had attempted to use the FOIA exemptions as "an all-purpose damper on global controversy" and "an alternative classification mechanism."
"It is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to encompass all United States troops, coalition forces, and civilians in Iraq and Afghanistan," the appeals court panel of judges ruled.
The appeals court further deemed the Bush administration's position legally flawed and added that releasing "the photographs is likely to further the purposes of the Geneva Conventions by deterring future abuse of prisoners."
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