Over objections from House liberals, President Barack Obama successfully pushed a bill through Congress earlier this month that allows the executive branch to unilaterally exempt photos of detainee abuse from disclosure under the Freedom of Information Act. The law rendered moot an appeals court decision that would have forced the administration to release the photos. It was also an attempt to preempt a Supreme Court fight over the lower court’s ruling.
But the legal wrangling isn’t over. The Supreme Court must still decide whether to take up the matter. So both sides—the Obama Justice Department and the ACLU—have to hash out what the new law means for their respective arguments about the photos. It remains to be seen whether the government will still press forward with its appeal given the changed situation. On Thursday, Solicitor General Elena Kagan told the Supreme Court in a letter [PDF] that she plans to file a new brief that takes into account the new legislation, which President Obama signed that day.
The immediate impact of Kagan’s letter is that the Supreme Court will probably postpone its decision, originally scheduled for today, on whether to take up the case. If it does eventually take up the case, it could conceivably rule that the government was right to withhold the photos under its original argument, rejected by the appeals court, that it could withhold any information that might put anyone, anywhere in danger. That decision would blow an even bigger hole in FOIA than the detainee photo legislation already has.