The opinion, dated yesterday, begins:
In September 2005 and June 2006, I ruled that the Department of Defense was required by the Freedom of Information Act (“FOIA”) to release photographs depicting the prisoners at Abu Ghraib prison and other sites in degrading portrayals. All photographs had been redacted to mask individual identities. The Court of Appeals affirmed. At that point, President Obama announced that the photographs would be made public. At that time, large numbers of similar photographs were then freely circulating on the internet. In that context, Nouri al-Maliki, Prime Minister of Iraq, asked President Obama not to release the photographs for fear of the consequences. The government filed a petition for certiorari and, at President Obama’s request, Congress enacted the Protected National Security Documents Act (“PNSDA”). The law amended FOIA to provide that the photographs could be made exempt from disclosure for a three-year certification by the Secretary of Defense to the effect that publication would endanger American lives. In a previous order, I upheld the certification of Secretary of Defense Robert Gates of November 13, 2009. See Dkt. Nos. 469, 474. The issue now at hand is whether or not I should uphold Secretary of Defense Leon Panetta’s Certification of November 9, 2012. Both sides tender the issue to me by separate motions for summary judgment. I hold, for the reasons discussed below, that Secretary Panetta’s certification is not sufficient to prevent publication of redacted photographs. It was conclusory as to all, when it should have been focused on each separate photograph as the PNSDA requires. And the government failed to show that it had adequate basis for the certification.
Judge Hellerstein ruled that it would “be prudent to allow the government the opportunity to create a record in this Court justifying its invocation of the PNSDA” and ordered the parties to appear at a conference to discuss next steps.