The group's 37-page opposition was supported by friend-of-the-court briefs filed by Human Rights Watch, the International Center for Transitional Justice and Amnesty International and another filed by the Reporters Committee for Freedom of the Press and 16 media organizations. The ACLU filed a Freedom of Information Act lawsuit in 2003 to gain access to the images.
"These photos may be profoundly disturbing, but they are a crucial part of the historical record and the appeals court was right to find that they should be released," said Jameel Jaffer, director of the ACLU National Security Project. "It's disappointing that the Obama administration, which in other contexts has recognized the close connection between transparency and accountability, is continuing to argue that the photos should be suppressed."
But even if the court refuses to take up the case, President Barack Obama has vowed to continue to suppress the images.
Obama sent a letter July 29 to Sens. Joe Lieberman and Lindsey Graham informing them that he would work with Congress to ensure legislation is passed that would block the release of the photographs.
The disclosure was made in a footnote in a 33-page petition the Obama administration filed last month with the US Supreme Court. Neither the White House nor spokespeople for Lieberman and Graham responded to phone calls and email queries seeking a copy of the letter.
The petition confirms that the contents of the 44 images at issue includes one in which a female solider pointed a broom at one detainee "as if I was sticking the end of a broom stick into [his] rectum."
Other photos at issue show US soldiers pointing guns at the heads of hooded and bound detainees in Iraq and Afghanistan. The filing also notes that the detainee abuse was investigated by the US Army's Criminal Investigation Division and "three of the six investigations led to criminal charges and in two of those cases, the accused were found guilty and punished."
In June, the Senate unanimously passed the Detainee Photographic Records Protection Act of 2009, an amendment to the supplemental appropriations spending bill sponsored by Lieberman and Graham. The House of Representatives referred the amendment to two House committees on June 18 where it is pending.
Additionally, on July 9, the Senate unanimously passed the amendment again as it was attached to the Department of Homeland Security appropriations bill.
"The President recently informed the sponsors of the pending detainee photograph legislation that he 'support[s] this legislation' and 'will work with Congress to get it passed,'" says the footnote in the Supreme Court petition prepared by Solicitor General Elena Kagan, quoting from Obama's July 29 letter to Lieberman and Graham.
The bill has faced opposition in the House and that may explain why the Obama administration has decided to appeal to the US Supreme Court if the House kills the measure altogether
Lieberman (I-Connecticut) and Graham (R-South Carolina) were sharply critical of Obama's decision not to fight a final ruling in March by the US Court of Appeals for the Second Circuit that called upon the Department of Defense to release the photographs. Obama indicated he would abide by that decision, but he abruptly shifted his stance after he was publicly criticized by the likes of Dick Cheney and Cheney's daughter, Liz.
Lieberman and Graham's amendment would authorize the Secretary of Defense to prohibit the release of the abuse photographs and videos for three years and renew it for three-year intervals thereafter. The Obama administration would, presumably, drop its appeal if the House passes the legislation when it returns from its summer break in September.
In June, Graham said during a floor speech, before the appropriations spending bill was passed, that White House Chief of Staff Rahm Emanuel assured him that the abuse photographs would never "see the light of day" and would sign an executive order if the Supreme Court refuses to take up the case or rule in favor of the administration if it decides to hear the appeal or if Congress does not pass legislation banning the disclosure of the images.
"I wanted to be assured by the administration that if the Congress fails to do its part to protect these photos from being released, the President would sign an Executive order which would change their classification to be classified national security documents that would be outcome determinative of the lawsuit," Graham said on June 17. "Rahm Emanuel has indicated to me that the President is committed to not ever letting these photos see the light of day, but they agree with me that the best way to do it is for Congress to act."
Obama had originally decided to release the photos because the administration did not believe the Supreme Court would take the case.