One of the matters which Chief Justice Roberts and Justices Breyer and Scalia (together with the other Justices of the US Supreme Court) will have to address on their return to Washington, after attending in London for the official opening of our Supreme Court, will be a case with strong parallels to a prominent legal action over here.

This is the case of Defense Department v. ACLU regarding the release under the Freedom of Information Act of photographs of prisoner abuse concerning allegations of abuse and mistreatment of detainees in United States custody.  The Supreme Court is due tomorrow, Monday, to determine whether to grant certiorari (that is permission to appeal) on a petition filed in this case by the Department. 

So far the United States District Court for the Southern District of New York and the United States Court of Appeals for the Second Circuit have both ordered disclosure of the photographs.


This has very significant resonance – although the circumstances are somewhat different – with the case currently going through our courts of R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs.


In particular, last week in this long running case, Lord Justice Thomas and Mr Justice Lloyd Jones in the Divisional Court decided to reinstate seven paragraphs in the first judgment in the proceedings which they said “summarised the account given in the reports by the United States authorities to the British Security Services about the treatment of the claimant … by the United States authorities”.  The Foreign Secretary has indicated that he will appeal.  Clearly, there is a reasonable possibility that this case will end up before our Supreme Court. 


In both cases, the question is whether the disclosure of information which demonstrates questionable conduct on the part of the United States authorities against detainees would be prejudicial to the public interest.  None of the Courts in either case has been persuaded that any significant prejudice arises.

A summary of the Court documents in ACLU can be found here on SCOTUSBlog. 


SCOTUSBlog also notes a letter from Solicitor General in the United States to the Court which refers the Court to a putative amendment to the Homeland Securities Appropriations Act which would authorise the Secretary of State for Defense specifically to exempt from disclosure photographs relating to the treatment of detainees by certifying that their disclosure would endanger citizens and armed services personnel. 


It seems unlikely that our own Foreign Secretary will resort to such legislative means to cure his own disclosure problem – however, it perhaps cannot be ruled out.