The pop culture phenomenon of 2009 appears to be vampires. From "True Blood" to "Twilight" people cannot get enough of these bloodsucking heliophobes. You know who else hates sunlight? Congress. And they've proved it again in exempting from FOIA photos and videos of U.S. troops torturing detainees in Iraq and Afghanistan. The American Civil Liberties Union filed a FOIA request seeking all such photos and videos from the years 2002-2004. The Department of Defense refused to release the images, alleging that a privacy exemption within FOIA properly applies because release of the photos would generally cause harm to United States troops and citizens overseas.

The ACLU successfully appealed that denial. The United States Court of Appeals for the Second Circuit ordered the government to release these records. But then we were hit with a one-two punch.

First, the Obama administration — in one of the first moves that tuned our radars into the fact that the administration was not as FOIA-friendly as it claimed to be — refused to comply with the Second Circuit decision and said it would appeal the Second Circuit decision to the Supreme Court. Then Congress commenced its legislative reversal of this decision. Senators Joe Lieberman, I-Conn., and Lindsay Graham, R-S.C., introduced an amendment to a supplemental war appropriations bill that would prohibit the release of any photos or videos created between 9/12/01 and 1/22/09. We beat that back but it reappeared as free-standing legislation. This was similarly unsuccessful.

However, the third time was the charm. The provision was passed into law as part of the Homeland Security Appropriations bill. The Supreme Court was on the verge of deciding whether to accept the case for review but has now indicated that it views the case as moot.

The reviews on this one are mixed: while we are frustrated with Congress' and the administration's continued refusal to consider the need for openness even on very sensitive matters (this comes, of course, as the Department of Defense has also said that embedded reporters are not to publish photos of battlefield casualties), many believe that this narrowly-drawn FOIA exemption is preferable to a potentially broader Supreme Court decision that would not only prohibit access to these photos and videos anyway, but also curtail access to a broader swath of similar information. ASNE and other groups are taking steps to ensure there are no sequels, as we hope to educate Members of Congress, their staff, and the administration on the proper (limited) use of specifically-crafted FOIA exemptions.