Today's developments mean that an earlier district court decision concerning the photographs will stand. That decision, written by Judge Alvin K. Hellerstein, held that "Publication of the photographs is central to the purposes of FOIA because they initiate debate, not only about the improper and unlawful conduct of American soldiers, 'rogue' soldiers, as they have been characterized, but also about other important questions as well -- for example, the command structure whose failures in exercising supervision may make them culpable along with the soldiers who were court-martialed for perpetrating the wrongs."
At issue are 73 photographs and three videotapes depicting detainee abuse, provided by Sergeant Joseph Darby to the Army's Criminal Investigation Command, many of which were recently released on the newsmagazine Web site Salon.com. In a stipulation filed with the Court of Appeals, the government agreed to authenticate and identify images on the Salon Web site that are among the images it has withheld. Any of the 73 photographs and three videotapes that have not been published on the Salon Web site will be released to the ACLU (with individually identifying details deleted) within a week of the court's formal dismissal of the appeal.
The government has not officially informed the ACLU as to how many images in its possession have not been published on Salon.com, but they are believed to be few in number. The ACLU has not seen these images.