The Obama administration believes giving the imminent grant of authority over the release of such pictures to the defense secretary would short-circuit a lawsuit filed by the American Civil Liberties Union under the Freedom of Information Act.
The White House is asking the justices to put off consideration of the case until after a vote on the measure in the House and Senate, as early as this coming week. The provision is part of a larger homeland security spending bill and would allow the defense secretary to withhold photographs relating to detainees by certifying their release would endanger soldiers or other government workers.
The ACLU said the court should not disturb a ruling by the federal appeals court in New York ordering the photographs' release. The pending congressional action "does not supply any reason for delay," Jameel Jaffer, director of ACLU's national security project, told the court.
The dispute is on a list of cases the Supreme Court could act on Tuesday.
Lower courts have ruled that a provision of FOIA allows documents to be withheld from the public for security reasons only in instances where there are specific threats against individuals.
President Barack Obama initially indicated he would not fight the release of the photographs. He reversed course in May and authorized an appeal to the high court.
The president said he was persuaded that disclosure could further incite violence in Afghanistan and Iraq and endanger U.S. troops there.
The photographs at issue were taken by service members in Iraq and Afghanistan and were part of criminal investigations of alleged abuse. Some pictures show "soldiers pointing pistols or rifles at the heads of hooded and handcuffed detainees," Solicitor General Elena Kagan said in the appeal to the high court.
In one, "a soldier holds a broom as if 'sticking its end into the rectum of a restrained detainee,"' Kagan said, quoting from an investigation report prepared by the Pentagon. Two investigations led to criminal charges and convictions, she said.
Kagan said the military has identified more than two dozen additional pictures that could be affected by the court's ruling. The government made much the same argument to prevent the release of 87 photographs and other images of detainees at detention facilities in Iraq and Afghanistan, including Abu Ghraib prison in Iraq.
International outrage resulted when photographs from the Iraqi prison showing physical abuse and sexual humiliation of inmates that took place under the Bush administration were revealed. One picture showed a naked, hooded prisoner on a box with wires fastened to his hands and genitals.
The government dropped its appeal related to those photographs after they were made public and posted on the Internet. The ACLU, in seeking the other pictures, said the government had long argued that the abuse at Abu Ghraib was isolated and was an aberration. The new photos would show that the abuse was more widespread, the ACLU said.
On the Net:
Government legal filings: http://tinyurl.com/yzkn6nl