Amicus Curiae Brief — Department of Defense v. American Civil Liberties Union, (2009) (No. 160)

No. 09-160

OFFICE OF HE

‘ CLER

URT, US

Jn the Supreme Court of the Gnited States

UNITED STATES DEPARTMENT OF DEFENSE, ET AL.,

PETITIONERS

Vv.

AMERICAN CIVIL LIBERTIES UNION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR HUMAN RIGHTS WATCH, THE

INTERNATIONAL CENTER FOR TRANSITIONAL

JUSTICE, AND AMNESTY INTERNATIONAL AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

CHARLES S. SIMS

Counsel of Record

AARON J. SCHINDEL

JENNIFER R. SCULLION

CLAUDE M. MILLMAN

SALLY L. SCHNEIDER

JAMES F. SEGROVES DAVID S. MORDKOFF

PROSKAUER ROSE LLP KEJI AYORINDE

1001 Penn. Ave., NW PROSKAUER ROSE LLP

Suite 400 South 1585 Broadway

Washington, DC 20004

(202) 416-6800

New York, NY 10036

(212) 969-3000

A TTI IT IEELE LEEOE IAL LAL TTELED, O EDEL DELETE LET DCI TIONAL

WILSON-EPES PRINTING CO , INC. — (202) 789-0096 — WASHINGTON,D C 20002

——

QUESTION PRESENTED

Whether the government can lawfully rely on Ex-

emption 7(F) of the Freedom of Information Act, 5

U.S.C. § 552(b)(7)(F), to withhold photographs de-

picting the abuse of prisoners held in U.S. custody

without identifying with reasonable specificity any

individuals whe could reasonably be expected to be

endangered b» cae photographs’ release.

(i)

(ii)

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ...0.00........ccccccceeeeeeeees 1

SUMMARY OF ARGUMENT ........00000...0..... cece ceeee eee ees 5

TET ccciiduiticheshcsibiiiiaaiiiniidiiidlindieiadinmnsanentinneiniseeninese 7

A. FOIA’s Mandate For Disclosure Is

Intentionally Broad; Exceptions Are

io. seieeaamenesousibnaninnn 7

B. Photographs Are Records That Must Be

PII GION TRIER: onccceccscccccscesscssnccsasscosee 12

C. Photographs Have Played An Important

Role In Protecting Human Rights, Here

I aiccicssitsiiediiniasiiiinddddannnekguddsiiadsbidddnnies 13

D. The Government’s Proposed

Interpretation Of Exemption 7(F) Is

Incorrect And Unworkable............................. 15

a censitenlionniien 19

TABLE OF AUTHORITIES

Cases:

Dep't of Justice v. Tax Analysts,

I ash ccaeisclcalle 10

Dep't of the Air Force v. Rose,

425 U.S. 352 (1976).......... a 9, 10

Dep't of the Interior v. Klamath Water Users

Protective Ass’n, 532 U.S. 1 (2001)..............0000.... 11

FBI v. Abramson,

I i a cic aisesinnileniaieieietion 10

Nat'l Archives & Records Admin. v. Favish,

a sbeheheanietaielieseansensaillaidoill 8

(iii)

Cases—Continued: Page

NLRB v. Robbins Tire & Rubber Co.,

Se es ee iiiriletianiteiseiiniimnninnnitsoomancesnenersened 8

U.S. Dep’t of Justice v. Reporters Comm. for

Freedom of the Press, 489 U.S. 749 (1988)............ 7

Statutes:

Act of Nov. 21, 1974,

Pub. L. No. 93-502, 88 Stat. 1561.......................06: 9

Civil Rights Act of 1957,

Pub. L. No. 85-315, 71 Stat. 634.................... eee 14

Electronic Freedom of Information Act

Amendments of 1996, Pub. L. No. 104-231,

Sr cilinsnemsininanenenniineid 9

Emmett Till Unsolved Civil Rights Crime Act of

2007, Pub. L. No. 110-344, 122 Stat. 3934.......... 14

Freedom of Information Act, 5 U.S.C. § 552 ..passim

I Ts itinsiicicaciciasnntenienistiadintaitivenianaianiiieaiiile passim

I hia clea dein temeatiinlelmntinaoiadaahisabin 12

Freedom of Information Reform Act of 1986,

Pub. L. No. 99-570, 100 Stat. 3207........................ 9

Government in Sunshine Act of 1976,

Pub. L. No. 94-409, 90 Stat. 1241.......00000 9

Intelligence Authorization Act of 2003,

Pub. L. No. 107-306, 116 Stat. 2383 (2002) .......... 9

Open Government Act of 2007,

Pub. L. No. 110-175, 121 Stat. 2524.............0........ 9

Legislative Materials:

H.R. Rep. No. 89-1497 (1966),

reprinted in 1966 U.S.C.C.A.N. 1853................ 8,9

H.R. Rep. No. 104-795 (1996),

reprinted in 1996 U.S.C.C.A.N. 3309................205. i)

(iv)

Legislative Materials—Continued: Page

Bi Ds Sees Se II octticticticcsnnnscnvecsusescesnsntinrtens 9

Statement of the Attorney General on

the Proposed Civil Rights Legislation

Before the Subcommittee on Constitutional

Rights of the Senate Judiciary Committee

AE RTERIE RSIS SIP ener nao td eo A 14

White House Press Release, Statement by

the President Upon Signing S. 1160

A I ccnaiien ah cinndemeicnaneenmeninenionitl 8,10

Other Authorities:

Charles Babington, Clinton: Support for

Guatemala was Wrong, Wash. Post,

he EE oe 12

Convention on the Prohibition of the Use,

Stockpiling, Production and Transfer of

Anti-Personnel Mines and on Their

I I olde meonrinnbiiiniien 14

Don Hubert, Occasional Paper #42, The

Landmine Ban: A Case Study in

Humanitarian Advocacy (Thomas J.

Watson Inst. for Int’l Studies 2000).................... 15

Dwight D. Eisenhower Presidential Library and

Museum, Civil Rights: The Emmett Till Case,

http://www.eisenhower.archives.gov/Research/

Digital_Documents/Civil_Rights_Emmett_

Till_ Case/EmmettTillCase.html.....................0.... 14

FBI, Terrorism: 2002-2005 (2007)................00c00-004 18

Guatemalan Comm’n for Historical Clarification,

Guatemala, Memory of Silence: Report of the

Commission for Historical Clarification,

Conclusions and Recommendations (1999)......... Bi

(v)

Other Authorities—Continued: Page

Human Rights Watch, Flooding South Lebanon,

Vol. 20, No. 2(E) (Feb. 2008).................cceeeeeeeeeeees 15

International Campaign to Ban Landmines

(ICBL), 10 Years in Force of the Mine Ban

Treaty: ICBL Campaigners Celebrate in 65

iain atelier celedeeennnenenaennet 15

Kate Doyle, The Guatemalan Police Archives,

National Security Archive Electronic Briefing

Book No. 170 (Nov. 21, 2005).............ccccceeeeeeeeeeees 11

Keith A. Beauchamp, The Murder of Emmett

Louis Till—The Spark That Started the Civil

Rights Movement, http://www.black-

collegian.com/African/till2005-2nd.shtml........... 14

Kelly Chernenkoff, Defense Department Releases

Flurry of Photos of Botched Plane Flyover,

FoxNews.com, July 31, 2009,

http://www.foxnews.com/politics/2009/07/

31/defense-department .....................2cceceeeceeeeeeeees 12

Michael S. Durham, Powerful Days: The Civil

Rights Photography of Charles Moore (1991) ..... 13

Noah Adams, Emmett Till and the Impact of

Images—Photos of Murdered Youth Spurred

Civil Rights Activism, National Public Radio,

June 23, 2004, http://www.npr.org/templates/

story/story.php?storyId=1969702........................ 14

Norwegian People’s Aid, Image Gallery on

Cluster Munitions, http://npaid.websys.no ......... 15

Southern Poverty Law Center, Recent Hate

Incidents in the United States (2009),

http://www.splcenter.org/center/petitions/

SEITE, BB occ ccecccnscccecsesccosscesescssccvesones 18

INTEREST OF AMICI CURIAE'

Amicus curiae Human Rights Watch (HRW) is

one of the leading independent organizations dedi-

cated to defending and protecting the human rights

of people around the world. For over 30 years, IIRW

has investigated and exposed human rights viola-

tions and challenged governments and international

tribunals to end abusive practices, respect human

rights, and hold abusers accountable for their ac-

tions.

To fulfill its mission, HRW investigates allega-

tions of abuse in the United States and throughout

the world by gathering information from governmen-

tal and other sources, interviewing witnesses, and

issuing detailed reports. Where abuse of human

rights has been found, HRW advocates for the vic-

tims before governmental officials and in the court of

public opinion. For example, recent reports issued

by HRW document: the disproportionate infliction of

corporal punishment on students with disabilities in

the United States; the abusive use of religious coun-

seling, indefinite detention and flawed trials in Saudi

Arabia’s counterterrorism program; harm to Isracli

civilians from rocket attacks launched by Palestinian

' No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amici curiae, their members or their counsel

made a monctary contribution to its preparation or submission.

Both petitioners and respondents have consented to the filing of

this brief. Petitioners’ and respondents’ written consents to the

filing of this brief have been filed with the Clerk. Counsel of

record for petitioners and respondents received notice of amici’s

intent to file this brief more than ten days before the due date.

2

armed groups in Gaza; dysfunction, abuse and impu-

nity in the police forces of India; institutionalized

discrimination against gays and lesbians in Burundi;

arbitrary killings by security forces in Nigeria; and

the failure to test thousands of rape kits collected

from victims of sexual assaults in Los Angeles,

California.

Amicus curiae International Center for Transi-

tional Justice (ICTJ) was established in the spring of

2001 to assist countries pursuing accountability for

mass atrocities or human rights abuses, as well as

unresolved historical injustices or systemic abuse, in

order to further peace, justice and democratic objec-

tives. Transitional justice encompasses five key

approaches to achieving accountability: prosecuting

perpetrators, documenting violations, reforming

institutions, compensating victims and facilitating

reconciliation. Working in societies newly emerging

from repressive regimes and armed conflicts, as well

as established democracies with unresolved histories

of past injustices, ICTJ works to provide comparative

information, legal and policy analyses, documenta-

tion and strategic research to local governmental and

nongovernmental institutions and organizations on

the policies and practice of transitional justice ap-

proaches. While ICTJ does not itself engage in

documenting human rights abuses, its work supports

those who are seeking to uncover the truth about

what happened as an important step toward ac-

countability.

In 2008, ICTJ launched its U.S. Accountability

Project to promote in the United States the same

emphasis on truth and accountability that ICTJ has

brought to more than 30 countries around the world.

3

Along with other organizations, ICTJ called upon the

President of the United States to assure that all

federal departments and agencies comply fully with

the letter and spirit of the Freedom of Information

Act (FOIA), 5 U.S.C. § 552, and joined with respon-

dent American Civil Liberties Union and others in

seeking the release of additional photographs of

mistreatment of detainees as the first step in the

process of achieving justice for the victims of such

abuse.

Amicus curiae Amnesty International (AI) is a

worldwide movement of people who campaign for

internationally recognized human rights. AI con-

ducts research into abuses of human rights and

publicizes its findings to 2.2 million members, sup-

porters and subscribers in over 150 countries, who

mobilize public pressure to demand that all govern-

ments respect the rule of law. For example, Al has

led international campaigns to stop violence against

women, defend the rights and dignity of those

trapped in poverty, abolish the death penalty, oppose

torture, free prisoners of conscience, protect the

rights of refugees and immigrants, and regulate the

global arms trade.

AI makes extensive use of photographic, video

and audio evidence to support its campaigns against

human rights abuses. Recently, for example, Al

published photographs and testimonies showing the

injuries and beatings inflicted by Honduran police on

peaceful protesters in Tegucigalpa in response to the

military-backed coup in June of this year.

Amict’s Reliance On Visual Media And FOIA

Visual media constitute an essential component

of amici’s fact-gathering and advocacy missions.

4

Photographic evidence is often the most compelling

and unassailable proof of official wrongdoing, as well

as the most effective means to convey to the public

the magnitude of the offenses and to mobilize public

opinion and support to effectuate change. In addi-

tion to detailed written reports, therefore, amici also

issue video and audio files and photo essays, proving

in ways that cannot be achieved with mere narrative

the impact and scope of the offenses uncovered.

FOIA is an important tool for human rights or-

ganizations. Campaigns for human rights rely on

meticulous research. Information in United States

government files, including law enforcement files, is

a crucial resource in this process. FOIA stands

virtually alone in the world as the embodiment of a

national commitment to governmental transparency

and accountability. Access to information that could

prove embarrassing to the Federal Government is

critical to the process of holding officials accountable

for their actions. The exemption to disclosure that

petitioners Department of Defense and Department

of the Army (coilectively, the Government) seek to

obtain in this action strikes at the heart of the mis-

sion pursued by HRW, ICTJ, AI and other human

rights organizations, both domestically and interna-

tionally.

Amici harbor no illusions about the capacity of

evil people to perform heinous acts. Indeed, it is

precisely because amici have dedicated themselves to

the task of shining a light on abuses of human rights

that have been breathtaking in their depravity that

they view with such alarm the broad—virtually

boundless—exception that the Government here

seeks to carve out of FOIA. The Government seeks

5

to withhold photographs depicting wrongdoing

because it fears that extremists will seize on the

photographs as an excuse to perform violent acts.

Those who engage in acts of violence and cruelty do

not need excuses. They need secrecy.

In furtherance of their mission to advance the

cause of human rights and to hold accountable those

who have abused human rights, amici urge the

Court to deny the Government’s petition for a writ of

certiorari.

SUMMARY OF ARGUMENT

Photographic evidence can be a particularly effec-

tive means of telling the stories of victims of human

rights abuse, and of galvanizing public opinion to

support efforts to deter such conduct and, when it

occurs, to hold abusers accountable for their actions.

Amici and other human rights organizations rely on

pictures along with other evidence to further their

missions. Many advances in human rights, at home

and abroad, can be traced, at least in part, to infor-

mation conveyed through pictures along with narra-

tive accounts, statistics, and other forms of informa-

tion. Were the Government to succeed in its efforts

to withhold the photographs at issue in this case

based on its extraordinarily expansive reading of

Exemption 7(F), the resulting harm to the advance-

ment of the cause of human rights would be incalcu-

lable.

Indeed, were the Government to succeed in its ar-

gument in this case, Exemption 7(F) would swallow

the rule. The Government does not (and could not)

claim that there is any separate or spec: ! provision

in FOIA regarding the disclosure of pictures. Accord-

ingly, any reading of Exemption 7(F) that is broad

6

enough to encompass the pictures the Government

wants to hide in this case would necessarily cover

information in any form—text, statistics, reports,

etc.—that could be anticipated to lead a person

inclined towards violence to engage in a violent act

against anyone, anywhere. Moreover, the potential

victims of such violence would not, under the Gov-

ernment’s interpretation of Exemption 7(F), need to

be Americans. Under the Government’s interpreta-

tion of the statute, information in a law enforcement

file that might be thought capable of leading one

Somali pirate to strike another Somali pirate would

be exempt from disclosure under FOIA. Or, under

the Government’s view, photos of abuses in Darfur

that are in law enforcement files and critical to

obtaining protection for the victims of the Sudanese

janjaweed militias would be withheld on the theory

that the perpetrators of the violence might seize on

the photos as an excuse to continue their campaign

of rape and murder. If the boundary to the statutory

exemption is the capacity of an extremist or fringe

group anywhere in the world to engage in a violent

act against anyone anywhere, then there is truly no

boundary to the exemption at all.

Oddly, while Exemption 7(F) would, under the

Government’s interpretation, be extraordinarily

broad, it would at the same time be extremely shal-

low in other respects. Exemption 7(F) applies only to

records or information “compiled for law enforcement

purposes.” In the Government’s interpretation of

FOIA, the same information, picture or report that

can be withheld if compiled for law enforcement

purposes will be subject to disclosure if it was ob-

tained or generated by the Government for reasons

other than law enforcement, regardless of the quan-

7

tity of mayhem it might cause. Similarly, the Gov-

ernment’s unbounded reading of the exemption is not

tied in any way to protecting or furthering law

enforcement.

The Government’s reading of Exemption 7(F) is so

untenable, and the decision below so clearly correct,

that the Court should deny review forthwith. The

Second Circuit read Exemption 7(F) in a manner

that is faithful to the language, purpose and history

of the statute. In contrast, the reading urged by the

Government would open a gaping hole in the statute,

and human rights advances and protections will be

severely stymied.

The Court should deny the Government’s petition

for review, in light of the clarity of FOIA, the absence

of any conflict, and the clearly correct decision of the

Second Circuit.

ARGUMENT

A. FOIA’s Mandate For Disclosure Is Intention-

ally Broad; Exceptions Are Narrowly Con-

strued.

FOIA is the most prominent federal law concern-

ing the public’s right of access to information com-

piled and maintained by the Federal Government.

Congress enacted FOIA to protect the public’s inter-

est in the free flow of government information to

ensure that the people “know what their government

is up to,” U.S. Dep’t of Justice v. Reporters Comm. for

Freedom of the Press, 489 U.S. 749, 772-73 (1988)

(internal quotation and emphasis omitted), and “to

ensure an informed citizenry, [which is] vital to the

functioning of a democratic society, needed to check

against corruption and to hold the [government]

accountable to the governed,” NLRB v. Robbins Tire

8

& Rubber Co., 437 U.S. 214, 242 (1978); see also Nat'l

Archives & Records Admin. v. Favish, 541 U.S. 157,

172 (2004) (describing FOIA as “a structural neces-

sity in a real democracy”).

On July 4, 1966, after years of congressional de-

bate, President Lyndon B. Johnson signed FOIA into

law, with the declaration that “[FOIA] springs from

one of our most essential principles: A democracy

works best when the people have all the information

that the security of the nation permits. No one

should be able to pull the curtain of secrecy around

decisions which can be revealed without injury to the

public interest.” White House Press Release, State-

ment by the President Upon Signing S. 1160 (July 4,

1966), reprinted in Att’y Gen.’s Mem. on the Public

Information Section of the Administrative Proce-

dures Act, at II (June 1967) [hereinafter Statement

by the President Upon Signing S. 1160]. President

Johnson’s views of FOIA echoed those of the House

report, which declared that “[t]he right of the indi-

vidual to be able to find out how his Government is

operating can be just as important to him as his

right to privacy. ... {FOLA] strikes a balance consid-

ering all these interests.” H.R. Rep. No. 89-1497, at

6 (1966), reprinted in 1966 U.S.C.C.A.N. 1853, 2423.

By way of background, FOIA amended section 3

of the Administrative Procedure Act of 1946 (APA).

In its original form, the APA “set forth uniform

standards for government administrative actions

affecting the public; it restated the law of judicial

review permitting the public to appeal to the courts

about wrongful administrative actions; it provided

for public participation in an agency’s rulemaking

activities. But most important/[,] it required agencies

9

to keep the public currently informed of their organi-

zation, procedures, and rules.” H.R. Rep. No. 89-

1497, at 3, reprinted in 1966 U.S.C.C.A.N. at 2420.

However, for decades after its enactment, the APA

“was being interpreted to restrict information avail-

ability” and was used as a tool for ensuring govern-

ment secrecy. H.R. Rep. No. 104-795, at 7 (1996),

reprinted in 1996 U.S.C.C.A.N. 3309, 3450. Thus, in

an effort to remove “impediments to [the] public[s]

access to information,” Congress enacted FOIA. Id.

Since its enactment, Congress has amended FOIA

on multiple occasions.”, Each amendment under-

scored and promoted FOIA’s broad policy and “‘gen-

eral philosophy of full agency disclosure unless

information is exempted under clearly delineated

statutory language.” Dep’t of the Air Force v. Rose,

425 U.S. 352, 360-61 (1976) (quoting S. Rep. No. 89-

813, at 3 (1965)). Throughout all of FOLA’s amend-

ments, Congress has not retreated from the position

that, when balancing opposing interests, “[i]t is not

necessary to conclude that to protect one of the

interests, the other must, of necessity, either be

abrogated or substantially subordinated.” S. Rep.

No. 89-813, at 3 (1965), reprinted in Subcomm. on

* Congress amended FOIA in 1974, 1976, 1986, 1996, 2002

and 2007. See Act of Nov. 21, 1974, Pub. L. No. 93-502, 88 Stat.

1561; Government in Sunshine Act of 1976, Pub. L. No. 94-409,

90 Stat. 1241; Freedom of Information Reform Act of 1986, Pub.

L. No. 99-570, 100 Stat. 3207; Electronic Freedom of Informa-

tion Act Amendments of 1996, Pub. L. No. 104-231, 110 Stat.

3048; Intelligence Authorization Act of 2003, Pub. L. No. 107-

306, 116 Stat. 2383 (2002); Open Government Act of 2007, Pub.

L. No. 110-175, 121 Stat. 2524.

19

Admin. Practice & Procedure of the Senate Comm.

on the Judiciary, Freedom of Information Act Source

Book: Legislative Materials, Cases, Articles, S. Doc.

93-82, at 38 (1974). Thus, FOIA embodies Congress’s

determination of how best to balance the public’s

interest in access to information with the interests of

the Federal Government, the interest of individuals

in the protection of privacy and all other competing

interests. However, Congress has never disavowed

President Johnson’s declaration that the “freedom of

information is so vital that only the national secu-

rity, not the desire of public officials or private

citizens, should determine when it must be re-

stricted.” Statement by the President Upon Signing

S. 1160.

As this Court has repeatedly made clear, at-

tempts to withhold information from disclosure

under FOIA are governed by the principle that

disclosure is the rule, subject to specific exemptions

that must be read narrowly:

Upon request, FOIA mandates disclosure of re-

cords held by a federal agency, see 5 U.S.C. § 552,

unless the documents fall within enumerated ex-

emptions, see § 552(b). “[T)]hese limited exemp-

tions do not obscure the basic policy that disclo-

sure, not secrecy, is the dominant objective of the

Act,” Department of Air Force v. Rose, 425 U. S.

352, 361 (1976); “[clonsistent with the Act’s goal

of broad disclosure, these exemptions have been

consistently given a narrow compass,” Depart-

ment of Justice v. Tax Analysts, 492 U. S. 136,

151 (1989); see also FBI v. Abramson, 456 U. S.

615, 630 (1982) (“FOIA exemptions are to be nar-

rowly construed”).

11

Dep’t of the Interior v. Klamath Water Users Protec-

tive Ass’n, 532 U.S. 1, 7-8 (2001).

The right to obtain information through FOIA has

been a tremendous aid to truth-seeking even outside

the United States. In Guatemala, for example, a

United Nations-supported Historical Clarification

Commission was established to investigate a period

of internal conflict and repression that had lasted

over 30 years. Although the commission “was stone-

walled at every turn by [Guatemalan] military,

intelligence and security officials, who refused to

turn over internal files on the grounds that they had

been destroyed during the war, or simply did not

exist,” investigators were nevertheless able to “pro-

vide some historical and judicial accountability” for

events during the war by gathering information from

“victims’ accounts, forensic records, published human

rights reports, perpetrators’ testimonies and thou-

sands of declassified U.S. documents obtained by the

National Security Archive under the Freedom of

Information Act ... .”° The commission issued its

report in early 1999 concluding, in part, that the

Central Intelligence Agency’s training of Guatema-

lan military officers in counterinsurgency and intel-

ligence techniques “had significant bearing on hu-

man rights violations during the armed conflict.”* In

* Kate Doyle, The Guatemalan Police Archives, National

Security Archive Electronic Briefing Book No. 170 (Nov. 2i,

2005), available at http://www.gwu.edu/~nsarchiv/NSAEBB/

NSAEBB170/index.htm.

* Guatemalan Comm’n for Historical Clarification, Guate-

mala, Memory of Silence: Report of the Commission for Histori-

cal Clarification, Conclusions and Recommendations (1999),

(continued)

12

light of that conclusion, the President of the United

States declared that U.S. “support for military forces

or intelligence units which engaged in violent and

widespread repression of the kind described in the

report was wrong... [a]Jnd the United States must

not repeat that mistake.”

B. Photographs Are Records That Must Be Dis-

closed Under FOIA.

There is no dispute that the photographs at issue

here are “records” subject to FOIA. As defined by

FOIA, the term “record” includes “any information

that would be an agency record... when maintained

by an agency in any format, including an electronic

format.” 5 U.S.C. § 552(f)(2)(A). In keeping with this

broad definition, the Federal Government has fre-

quently produced photographs in response to FOIA

requests.°®

available at http-//shr.aaas.org/guatemala/ceh/report/english/

toc.html.

5 Charles Babington, Clinton: Support for Guatemala was

Wrong, Wash. Post, Mar. 11, 1999, at Al.

© See, e.g., National Security Archive, Return of the Fallen,

Pentagon Releases Hundreds More War Casualty Homecoming

Images, Electronic Briefing Book No. 152, Apr. 28, 2005,

http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB152/index.ht

m (Pentagon released more than 700 photographs of the arrival

ceremonies for deceased military personnel in response to FOIA

requests and lawsuit); Kelly Chernenkoff, Defense Department

Releases Flurry of Photos of Botched Plane Flyover, Fox-

News.com, July 31, 2009, http:/Awww.foxnews.com/politics/2009/

07/3 Udefense-department-releases-flurry-photos-botched-plane-

flyover (146 photos of controversial Manhattan flyover released

in response to FOIA requests).

13

C. Photographs Have Played An Important Role

In Protecting Human Rights, Here And

Abroad.

For amici and others dedicated to the advance-

ment of human rights, access to photographs can be

particularly important in proving to a_ skeptical

world that human rights have been abused, in gal-

vanizing public opinion, and in moving courts to hold

perpetrators accountable and legislatures to enact

remedial laws. For example, the compelling photo-

graphs of the civil rights movement helped lead to

the enactment of landmark civil rights laws in the

1960's:

{On July 2] President Lyndon Johnson signed the

Civil Rights Act of 1964, which outlawed dis-

crimination at the polls and in schools, public fa-

cilities, and places of employment. By then

(Charles Moore’s] Birmingham photographs had

become so much a part of the public memory of

those events that they even received some meas-

ure of credit for the passage of the legislation. As

the historian Arthur Schlesinger, Jr., later said,

“The photographs of Bull Connor’s police dogs

lunging at the marchers in Birmingham did as

much as anything to transform the national mood

and make legislation not just necessary, which it

had long been, but possible.”

Michael S. Durham, Powerful Days: The Civil Rights

Photography of Charles Moore 32 (1991).

Similarly, the photographs of Emmett Till’s muti-

lated body that were published by Jet magazine in

1955 have been credited with spurring the civil

rights movement in the United States, leading to the

passage of the Civil Rights Act of 1957, Pub. L. No.

14

85-315, 71 Stat. 634.’ Indeed, the haunting images

of the murdered boy still retain their power to move

the public, and recently led to the enactment of the

Emmett Till Unsolved Civil Rights Crime Act of

2007, Pub. L. No. 110-344, 122 Stat. 3934.

More recently, human rights organizations have

harnessed the power of: pictures to advance such

causes as the banning of anti-personnel landmines

and cluster munitions. The use of photographic

imagery played a prominent role in the adoption of

the 1997 Mine Ban Treaty, an _ international

agreement that bans antipersonnel landmines.* The

human rights and governmental organizations that

‘ See Keith A. Beauchamp, The Murder of Emmett Louis

Till—The Spark That Started the Civil Rights Movement,

http://www.black-collegian.com/African/till2005-2nd shtml;

Noah Adams, Emmett Till and the Impact of Images—Photos of

Murdered Youth Spurred Civil Rights Activism, National Public

Radio, June 23, 2004, http://www.npr.org/templates/story/story.

php?storyId=1969702; Dwight D. Eisenhower Presidential

Library and Museum, Civil Rights: The Emmett Till Case,

http://www.eisenhower.archives.gov/Research/Digital_Documen

ts/Civil_Rights_Emmett_Till_Case/EmmettTillCase.html; see

also Statement of the Attorney General on the Proposed Civil

Rights Legislation Before the Subcommittee on Constitutional

Rights of the Senate Judiciary Committee 19 (Feb. 14, 1957)

(“All of us here are shocked, I am sure, at cases such as that of

Emmett Louis Till . . . .”), available at http://www.eisenhower.

achives.gov/Research/Digital_ Documents/Civil_Rights_Civil_Ri

ghts_Act/New%20PDFs/Statement_of the_Attorney_General.pd

f.

* Convention on the Prohibition of the Use, Stockpiling,

Production and Transfer of Anti-Personnel Mines and on Their

Destruction art. 1 (1997), available at http://untreaty.un.org/

English/millennium/law/disarmament/xxvi_5E.htm.

15

led tie effort to bring about this treaty used various

modes of media—film, photograph, and text—‘“to

draw the world’s attention to the scourge of land-

mines and call for a mine-free world.”” A similar

effort, also making extensive use of photographic

images, led to the recent adoption of the Convention

on Cluster Munitions."

In short, the use of FOIA, and of photographs and

imagery, have long played important roles in

advancing the cause of human rights, at home and

abroad.

D. The Government’s Proposed Interpretation Of

Exemption 7(F) Is Incorrect And Unworkable.

The Government here sceks to withhold the

release of pictures depicting abuse of detainees in

Iraq because it fears that anti-American extremists

* International Campaign to Ban Landmines (ICBL), 10

Years in Force of the Mine Ban ‘Treaty: ICBL Campaigners

Celebrate in 65 Countries! (2009), available’ al

http://www.icbl.org/index.php/icbl/layout/set/print/Library/News

-Articles/National-Campaigns/1MarchO09Yevents; see also Don

Ilubert, Occasional Paper #42, The Landmine Ban: A Case

Study in Humanitarian Advocacy 31-32 (Thomas J. Watson

Inst. for Int'l Studies 2000) (“Effective use was also made of the

visual media including traveling photograph exhibits, videos

highlighting the impact of landmines, and televised documenta-

ries.”).

'0 See Human Rights Watch, Flooding South Lebanon, Vol.

20, No. 2E), at 14 4=(Feb. 2008), available at

http://www.hrw.org/sites/default/files/reportsfebanon0208_1.pd

f; Norwegian People’s Aid, Image Gal.ery on Cluster Munitions,

http://npaid.websys.no. The text of the convention is available

at http://www.clusterconvention.org/downloadablefiles/ccm77_

english.pdf.

16

will seize on these pictures as an excuse to commit

(or continue to commit) acts of violence against

American troops, Afghan and Iraqi personnel and

civilians, and Americans gencrally. Certainly,

Americans, Iraqis and Afghans (along with almost

everyone else) have cause to be concerned about the

risk of violence by extremists. FOIA, however, does

not provide the authority the Government seeks.

The Government claims to have found the broad

authority to withhold anything that would be

disturbing to an extremist tucked away in

Exemption 7(F), a provision dealing exclusively with

information compiled for law enforcement purposes.

On its face, this is a most unlikely place for Congress

to have hidden an exception of such extraordinary

breadth. The court below carefully and methodically

analyzed the language, history and purpose of the

statute, and concluded correctly that the law simply

does not give the Government the broad power it

secks.

Indeed, if the rule were otherwise, there would be

nothing left of FOIA. The Government’s stated

concern in this case is with certain radical Islamists,

but the rule the Government proposes would apply to

a virtually limitless class of potentially violent

individuals and _ groups. Indeed, almost every

governmental action related to law enforcement (and

especially any governmental misdeed) can_ be

characterized as one that is likely to be disturbing to

an extremist or an extremist group that has

demonstrated a propensity for violence. The list of

such groups is long and varied, and covers the entire

political spectrum from extreme left to extreme right.

It is an unfortunate fact of modern life that

17

extremism does not discriminate—it would be

difficult to find any race, religion, national group or

cause that does not have a violent fringe element."

''The FBI’s list of perpetrators of terrorist acts within the

United States includes fringe groups and radical individuals of

every type: Al-Qa’ida, American Front Skinheads, Animal

Liberation Front, Anti-Communist Alliance, Antonia Martinez

Student Commandos, Armed Forces of National Liberation,

Armed Forces of Popular Resistance, Armed Resistance Unit,

Armenian Secret Army for the Liberation of Armenia, Aryan

Nations, Bashir Baesho, Benjamin Nathaniel Smith, Black

Brigade, Boricua Revolutionary Front, Buford O’Neal Furrow,

Carlos Martinez, Clayton Lee Waagner, Commando Rojo,

Communist Workers Party, Concerned Sierra Leone Nationals,

Croatian Freedom Fighters, Earth First Organization, Earth

Night Action Group, Ejercito Popular Boricua Macheteros,

Ejercito Revolucionario Del Pueblo, Eric Robert Rudolph,

Eugenio Maria de Hostos International Brigade of the Pedro

Albizu Campos Revolutionary Forces, Evan Mecham Eco-

Terrorist International Conspiracy, Fuqra, Group for the

Liberation of Vieques, Grupo Estrella, Guerrilla Forces of

Liberation, Haitian Extremists, Hesham Mohamed Ali

Hedayat, Hossein Olya, International Committee Against

Nazism, International Islamic Extremists, Iranian Free Army,

Iranian Patriotic Army, Islamic Extremists, Jewish Defenders,

Jewish Defense League, Jewish Defense League/American

Revenge Committee, June 9 Organization, Justice Commandos

of the Armenian Genocide, Justice Knights of the Ku Klux

Klan, Libyan Revolutionary Committee, Libyan Students, Mark

Warren Sands, Mexican Revolutionary Movement, Mujahedin-

E-Khalq, National Liberation Movement, Norman David

Mayer, United Freedom Front, October 3, Omega 7, Organiza-

tion Alliance of Cuban Intransigence, Organization of Volun-

teers for the Puerto Rico Revolution, Pedro Albizu Campos

Revolutionary Forces, Pedro Albizu Group Revolutionary

Forces, People of Omar, People’s Mujahedin Organization of

Iran, People’s Revolutionary Commandos, Popular Liberation

Army, Provisional Coordinating Committee of the Labor Self-

(continued)

18

Moreover, the list of potential victims is nearly as

long and diverse as the list of potential perpetrators.

This year alone, reported hate-related incidents in

the United States have been targeted against dozens

of different and disparate groups and individuals.”

These lists just reflect the perpetrators and vic-

tims of domestic incidents. Under the Government’s

reading of Exemption 7(F), information compiled for

law enforcement purposes could be withheld from

disclosure under FOIA if it could incite any person or

group to commit a violent act against any person,

anywhere—a “heckler’s veto” without limit.

Defense Group, Puerto Rican Armed Resistance, Rashid Najib

Baz, Raymond Anthony Sandoval, Red Guerrilla Resistance,

Republic of Revolutionary, Revenge of the Trees, Revolutionary

Commandos of the People/Ready and at War, Revolutionary

Communist Party, Revolutionary Communist Youth Brigade,

Revolutionary Fighting Group, Sean Michael Gillespie/Aryan

Nations, Shernffs Posse Comitatus, Spokane Bank Robbers,

Timothy McVeigh, Terry Nichols, and Up the IRS, Inc. FBI,

Terrorism: 2002-2005 (2007), available at http://www.fbi.gov/

publications/terror/terrorism2002_2005.pdf.

'’ According to information compiled by the Southern Pov-

erty Law Center, such victims include: abortion clin-

ics/providers, Asians, Assembly of God Church, Baptist Church,

Blacks, Catholics, Chileans, Chinese, Ecuadorians, Family Life

Worship Center, gay men, Greek Orthodox Church, Hispanics,

homeless men, immigrants, Indians, interracial couples,

Jehovah’s Witnesses, Jews, Lesbians, Mexicans, Mormons,

Muslims, Native Americans, police officers, Puerto Ricans,

Romanians, Sikhs, Somalis, supporters of same-sex marriage,

transgender persons, Unitarian Universalist Fellowship

Church, and Whites. Southern Poverty Law Center, Recent

Hate Incidents in the United States (2009),

http://www.splcenter.org/center/petitions/standstrong/index.jsp.

19

Under the Government’s reading of Exemption

7(F), photographs and other records can be withheld

from disclosure that would otherwise be required

under FOIA if they happen to have been compiled for

law enforcement purposes, whether or not withhold-

ing the records actually furthers any law enforce-

ment objective or is in any way connected to law

enforcement. Yet, at the same time, under the

Govcrnment’s reading of the statute, the power to

protect unspecified persons from violence at the

hands of extremists that the Government claims to

have found in Exemption 7(F) completely disappears

if the incendiary photograph or information happeas

to be in a file that was not compiled for law enforce-

ment purposes. It is inconceivable that Congress

could have been so careless and capricious. The

conclusion is inescapable that the sweeping author-

ity that the Govermment claims to have found in

Exemption 7(F) simply isn’t there, and that the lower

court’s ruling was correct.

CONCLUSION

Congress decided that disclosure of human rights

abuses—including maltreatment of detainees by our

own personnel, in violation of statutory law and

international treaties—is the “best disinfectant”

against the repetition of such wrongs in the future.

The overarching policy and structure of FOIA—

mandatory disclosure, unless a specified exemption,

narrowly construed, permits withholding—was

embodied in the statute deliberately and for good

reason.

Given the clarity of FOIA, the absence of any con-

flict in the lower courts, and the cleariy correct

decision of the lower court in this case, the Court

should deny the petition for a writ of certiorari.

Respectfully submitted.

JAMES F. SEGROVES

PROSKAUER ROSE LLP

1001 Penn. Ave., NW

Suite 400 South

Washington, DC 20004

(202) 416-6800

SEPTEMBER 2009

CHARLES S. SIMS

Counsel of Record

AARON J. SCHINDEL

JENNIFER R. SCULLION

CLAUDE M. MILLMAN

SALLY L. SCHNEIDER

DAVID S. MORDKOFF

KEJI AYORINDE

PROSKAUER ROSE LLP

1585 Broadway

New York, NY 10036

(212) 969-3000