SCOTUS Overturns Detainee Photo Release Order

The U.S. Supreme Court has reversed a decision by the 2nd Circuit (in which Sonia Sotomayor took part) on detainee photographs.

supreme-court-buildingThe justices sent the case back to the United States Court of Appeals for the Second Circuit, in Manhattan, which ruled in 2008 that the pictures should be released to the public. But at the request of the Obama administration, the Second Circuit later postponed its own order, setting the stage for the administration to take the case to the Supreme Court.

On Monday, the justices told the Second Circuit to give “further consideration” to the issue in light of a Congressional action authorizing the Defense Department to keep the pictures from the public. With the issue on its way back to the Second Circuit, a final decision will probably not be made for months.


The administration said in April that it would not oppose release of the images. But President Obama changed his mind after seeing the photographs, and after listening to arguments from Pentagon officials that the pictures, taken early in the wars in Iraq and Afghanistan, would indeed inflame anti-American sentiment.

Sotomayor recused herself from the case.

It’s quite conceivable that the 2nd Circuit would have decided the other way in light of subsequent legislation, since its decision was not based on Constitutional interpretation but rather the weighing of separate statutes (the Freedom of Information Act and the CIA Information Act).

FILED UNDER: Law and the Courts, Supreme Court, Terrorism, , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Ugh says:

    Can’t let the poor citizenry of the U.S. know what the government has been up to.

  2. JVB says:

    Shouldn’t put our military at risk just because the ‘citizenry’ (that the vast majority making all the waves probably have yet to spend one night in service for their country)can’t appreciate the simple concept of support, regardless where they stand personally on the issue of war.

  3. Zelsdorf Ragshaft III says:

    Hey, Ugh, try to get into area 51. Why do you want to see those photos? Evidently you want have the photos published because you so hate America than you do not care if it would or could cause harm to our service people stationed in lands who’s people sometimes react with extreme violence toward that which they take as insulting to Islam. I think you should be given the pictures and sent to some unstable area of the Muslim world where you would be forced to display them. Just before you were beheaded. WTF is wrong with people like you?

  4. Ugh says:

    JVB – so you support immediate withdrawal from Iraq and Afghanistan then?

    ZRIII – keep up the spoof, it’s hilarious!

  5. Zelsdorf Ragshaft III says:

    Ugh, do you bong kronic or just dirt week?

  6. Mike says:

    Don’t do the “those who want them have not served”. I have been in a long time now and want them published. There will be some backlash but the impact of our government covering up its crimes is far worse in the long run. Transparency is a good thing in my humble opinion.