"The [Untold] Tillman Story" Appendix J1 -- 2009 McChrystal Protection Act (7/15/10)

8/9/2019 "The [Untold] Tillman Story" Appendix J1 -- 2009 McChrystal Protection Act (7/15/10)

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Detainee Photographic Records Protection Act of 2009

(or Gen. McChrystal Protection Act of 2009)

The Second Circuit ruled last September that the photos must be released under the Freedom ofInformation Act. After the Circuit Court refused in March to rehear the case en banc, the

Administration decided on April 27, 2009 not to take the case on to the Supreme Court, and the

Circuit Court issued its mandate.

On May 11th

, President Obama nominated Gen Stanley McChrystal as the new Afghan

Commander.

On May 13th, the President announced that release of the photos would pose an unacceptable

risk of danger to U.S. troops in Afghanistan and Iraq after meeting with Gen Petreuas and other

military leaders on May 12th

.

Obviously anticipating that the Government was likely to lose its court appeal, Obama asked

Congress to change FOIA by retroactively narrowing its disclosure requirements and prevent a

legal ruling by the courts. Senator Graham said the White House helped them draft the bill.

On May 20th

, U.S. Senators Lindsey Graham (R-SC) and Joe Lieberman (ID-CT) and Senator

John McCain introduced the Detainee Photographic Records Protection Act to block the

release of the detainee photosby changing the language of the Freedom of Information Act.

On May 21st, the Detainee Photographic Records Protection Act was offered as an amendment

to the Supplemental Appropriations bill and the U.S. Senate unanimously passed it.

On June 2nd, the Senate Armed Services Committee held McChrystals confirmation hearing. On

June 10th

, the Senate confirmed McChrystals promotion as commander of the Afghan War.

The bill was stripped out of the supplemental. However, it was later added as an amendment to a

Homeland Security Approprations Bill HR 2892.

President Obama finally signed the bill into law on October 28, 2009.

. . .

To argue that the photos will harm how we are perceived is, necessarily, to acknowledge that

they reveal new information that is not already widely known[McChrystals role in torture at

Camp Nama?]. Apparently, the proper reaction to heinous acts by our political leaders is not to

hold them accountable but, instead, to hide evidence of what they did. What makes all of this

even worse is that it is part of a broader trend whereby the Government simply retroactively

changes the law whenever it decides it does not want to abide by it.


2/15

FromObama's latest effort to conceal evidence of Bush era crimes

ByGlenn GreenwaldWednesday, May 13, 2009 16:55 ET salon.com

It's difficult to react much toObama's complete reversaltoday of his own prior decision to

release photographs depicting extreme detainee abuse by the United States.

Apparently, the proper reaction to heinous acts by our political leaders is not to hold them

accountable but, instead, to hide evidence of what they did. That's the warped mentality Obama

is endorsing today, and has been endorsing since January 20.

Obama's claim that he has to hide this evidence to protect our soldiers is the sort of crass, self-

serving exploitation of "The Troops" which was the rancid hallmark of Bush/Cheney rhetoric.

Everyone knows what the real effect of these photographs would be: they would highlight just

how brutal and criminal was our treatment of detainees in our custody

if you actually want to argue that concealing these photographs is the right thing to do, thenyou must have been criticizing Obama when, two weeks ago, he announced that he would

release them. Otherwise, it's pretty clear that you don't have any actual beliefs other

than: "I support what Obama does because it's Obama who does it."

Also, during the Bush years, were you attacking the ACLU and Congressional Democrats for

demanding that the Bush administration stop concealing evidence of its torture, on the ground

that disclosure of such evidence would harm America's national security? Were you defending

Bush then for doing what Obama is doing now?

If these photographs don't shed any new light on what our Government did -- if all they do isreplicate what we already know from the Abu Ghraib photographs -- then how can it possibly be

the case that they will do any damage? To argue that they will harm how we are perceived is,

necessarily, to acknowledge that they reveal new information that is not already widely known.

Photographs convey the reality of things in a way that mere words cannot. They force

citizens to face what their country did and what they are now justifying and advocating. They

impede the ability of political leaders to use euphemisms to obscure the truth. That's

precisely why the photographs are being suppressed: because of how much good they would do.
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3/15

FromObama's support for the new Graham-Lieberman secrecy law

ByGlenn Greenwald Monday, Jun 1, 2009 05:02 ET salon.com

It was one thing when President Obamareversed himselflast month by announcing that he

would appeal the Second Circuit's ruling that the Freedom of Information Act (FOIA) compelleddisclosure of various photographs of detainee abuse sought by the ACLU. But now --

obviously anticipating that the Government is likely tolose in court again(.pdf) -- Obama wants

Congress to change FOIA by retroactively narrowing its disclosure requirements, prevent a

legal ruling by the courts, and vest himself with brand new secrecy powers under the law

which, just as a factual matter, not even George Bush sought for himself.

The White House is actively supporting a new billjointly sponsoredby Sens. Lindsey Graham

and Joe Lieberman -- calledThe Detainee Photographic Records Protection Act of 2009-- that

literally has no purpose other than to allow the government to suppress any "photograph taken

between September 11, 2001 and January 22, 2009 relating to the treatment of individualsengaged, captured, or detained after September 11, 2001, by the Armed Forces of the United

States in operations outside of the United States." The Senate passed the bill as an

amendment last week.

What kind of a country passes a law that has no purpose other than to empower its leader to

suppress evidence of the torture it inflicted on people? Readthe language of the bill; it doesn't

even hide the fact that its only objective is to empower the President to conceal evidence of war

crimes.

What makes all of this even worse is that it is part of a broader trend whereby the Government

simply retroactively changes the law whenever it decides it does not want to abide by it. And

now that courts have ruled that our decades-old transparency law compels disclosure of this

torture evidence, the Congress is just going to retroactively change the law -- again -- this time to

empower the President to suppress that evidence anyway.

Everything that government does is supposed to be transparent to the public unless there is a

compelling reason for secrecy -- and the whole point of FOIA always has been that mere

embarrassment, the mere fact that information reflects poorly on our government, isn't a

legitimate ground for concealment. That's a critical principle for open government. This new

law explicitly guts that principle. It institutionalizes the pernicious notion that secrecy is

justified where disclosure would reflect badly on the Government and thus "endanger" American

citizens and/or our troops.

. . .
http://www.salon.com/news/opinion/glenn_greenwald/2009/06/01/photoshttp://www.salon.com/news/opinion/glenn_greenwald/2009/06/01/photoshttp://www.salon.com/news/opinion/glenn_greenwald/2009/06/01/photoshttp://www.salon.com/author/glenn_greenwald/index.htmlhttp://www.salon.com/author/glenn_greenwald/index.htmlhttp://www.salon.com/author/glenn_greenwald/index.htmlhttp://www.washingtonpost.com/wp-dyn/content/article/2009/05/13/AR2009051301751.htmlhttp://www.washingtonpost.com/wp-dyn/content/article/2009/05/13/AR2009051301751.htmlhttp://www.washingtonpost.com/wp-dyn/content/article/2009/05/13/AR2009051301751.htmlhttp://www.aclu.org/pdfs/safefree/acluvdod_photodecision.pdfhttp://www.aclu.org/pdfs/safefree/acluvdod_photodecision.pdfhttp://www.aclu.org/pdfs/safefree/acluvdod_photodecision.pdfhttp://www.scotusblog.com/wp/us-plans-appeal-on-abuse-photos/http://www.scotusblog.com/wp/us-plans-appeal-on-abuse-photos/http://www.scotusblog.com/wp/us-plans-appeal-on-abuse-photos/http://www.scotusblog.com/wp/us-plans-appeal-on-abuse-photos/http://lgraham.senate.gov/public/index.cfm?FuseAction=PressRoom.PressReleases&ContentRecord_id=69128d10-802a-23ad-47be-400c6eb4776fhttp://lgraham.senate.gov/public/index.cfm?FuseAction=PressRoom.PressReleases&ContentRecord_id=69128d10-802a-23ad-47be-400c6eb4776fhttp://lgraham.senate.gov/public/index.cfm?FuseAction=PressRoom.PressReleases&ContentRecord_id=69128d10-802a-23ad-47be-400c6eb4776fhttp://www.opencongress.org/bill/111-h2346/text?version=eas&nid=t0:eas:700http://www.opencongress.org/bill/111-h2346/text?version=eas&nid=t0:eas:700http://www.opencongress.org/bill/111-h2346/text?version=eas&nid=t0:eas:700http://www.opencongress.org/bill/111-h2346/text?version=eas&nid=t0:eas:700http://www.opencongress.org/bill/111-h2346/text?version=eas&nid=t0:eas:700http://www.opencongress.org/bill/111-h2346/text?version=eas&nid=t0:eas:700http://www.opencongress.org/bill/111-h2346/text?version=eas&nid=t0:eas:700http://www.opencongress.org/bill/111-h2346/text?version=eas&nid=t0:eas:700http://lgraham.senate.gov/public/index.cfm?FuseAction=PressRoom.PressReleases&ContentRecord_id=69128d10-802a-23ad-47be-400c6eb4776fhttp://www.scotusblog.com/wp/us-plans-appeal-on-abuse-photos/http://www.scotusblog.com/wp/us-plans-appeal-on-abuse-photos/http://www.aclu.org/pdfs/safefree/acluvdod_photodecision.pdfhttp://www.washingtonpost.com/wp-dyn/content/article/2009/05/13/AR2009051301751.htmlhttp://www.salon.com/author/glenn_greenwald/index.htmlhttp://www.salon.com/news/opinion/glenn_greenwald/2009/06/01/photos


4/15

S.1100 -- Detainee Photographic Records Protection Act of 2009 (Introduced in Senate - IS)

May 20, 2009

Mr. LIEBERMAN (for himself, Mr. GRAHAM, and Mr. MCCAIN) introduced the following

bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To provide that certain photographic records relating to the treatment of any individual engaged,

captured, or detained after September 11, 2001, by the Armed Forces of the United States in

operations outside the United States shall not be subject to disclosure under section 552 of title 5,

United States Code (commonly referred to as the Freedom of Information Act).

Be it enacted by the Senate and House of Representatives of the United States of

America in Congress assembled,

SEC. 3. CERTIFICATION.

(a) In General- For any photograph described under section 2(1)(A), the Secretary of

Defense shall submit a certification, in classified form to the extent appropriate, to thePresident, if the Secretary of Defense, in consultation with the Chairman of the Joint

Chiefs of Staff, determines that the disclosure of that photograph would endanger--

(1) citizens of the United States; or

(2) members of the Armed Forces or employees of the United StatesGovernment deployed outside the United States.

(b) Certification Expiration- A certification submitted under subsection (a) and a

renewal of a certification submitted under subsection (c) shall expire 5 years after thedate on which the certification or renewal, as the case may be, is submitted to thePresident.

(c) Certification Renewal- The Secretary of Defense may submit to the President--

(1) a renewal of a certification in accordance with subsection (a) at any time;and

(2) more than 1 renewal of a certification.

SEC. 4. NONDISCLOSURE OF DETAINEE RECORDS.

A covered record shall not be subject to--

(1) disclosure under section 552 of title 5, United States Code (commonlyreferred to as the Freedom of Information Act); or

(2) disclosure under any proceeding under that section.

SEC. 5. EFFECTIVE DATE.

This Act shall take effect on the date of enactment of this Act and apply to any

photograph created before, on, or after that date that is a covered record.


5/15

FromGraham Introduces Legislation Codifying President's Decision Banning

Release of Detainee Photos

Senator Graham Press Releases 05/19/2009

WASHINGTON, DCU.S. Senators Lindsey Graham (R-SC) and Joe Lieberman (ID-CT) [andSenator John McCain] today introduced the Detainee Photographic Records Protection Act

which would establish a procedure to block release of the detainee photos. The Senators plan to

offer the legislation as an amendment to the Supplemental Appropriations bill that is being

deliberated on the Senate floor this week.

Last week, after consulting with General Petraeus, General Odierno, and others, President

Obama decided to fight the release of photographs that depict the treatment of detainees in U.S.

custody. Those photographs are the subject of a Freedom of Information Act lawsuit filed by the

American Civil Liberties Union.

This legislation would authorize the Secretary of Defense, after consultation with the Chairman

of the Joint Chiefs, to certify to the President that the disclosure of photographs like the ones at

issue in the ACLU lawsuit would endanger the lives of our citizens or members of the Armed

Forces or civilian employees of the United States government deployed abroad. the language

in the bill is clear that it would apply to the current ACLU lawsuit.

. . .

FromSenate Adopts Lieberman-Graham Amendment Banning Release ofDetainee Photos

Senator Graham Press Releases 05/22/2009

WASHINGTONThe U.S. Senate unanimously passed an amendment last night introduced by

U.S. Senators Lindsey Graham (R-SC) and Joe Lieberman (ID-CT) [and John McCain] which

establishes a procedure to block release of the detainee photos.

The Detainee Photographic Records Protection Act was offered as an amendment to the

Supplemental Appropriations bill that was passed by the Senate last night

. . .
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6/15

From U.S. plans appeal on abuse photos

Lyle Denniston| SCOTUS blog Thursday, May 28th, 2009 9:15 pm

The Obama Administration has decided to go to the Supreme Court if Congress does not actfirstto stop public disclosure of an array of U.S. Army photos that apparently show severe

abuse of terrorist detainees in Iraq and Afghanistan. The Justice Department on Thursday asked

the Second Circuit Court to put a ruling ordering release on hold because the Solicitor General

has decided to appeal to the Supreme Court absent intervening legislation.

A motion to recall the Circuit Court mandate, along with other court papers, can be found here.

This was the latest legal maneuver by the Administration since President Obama changed his

mind, from agreeing to release the photos to opposition to their disclosure.

The Second Circuit ruled last September, inAmerican Civil Liberties Union, et al., v.

Department of Defense (docket 06-3140), that the photos must be released under the Freedom ofInformation Act. After the Circuit Court refused in March to rehear the case en banc, the

Administration decided not to take the case on to the Supreme Court, and the Circuit Court

issued its mandate.

The President decided this month, however, that release of thephotos would pose an

unacceptable risk of danger to U.S. troops in Afghanistan and Iraq. A federal judge in New

York was then advised of the switch in position. Shortly afterward[May 20], the Senate took up

legislation to block the releasethe Detainee Photographic Records Protection Actby

changing the language of the Freedom of Information Act.

The Senate adopted that provision May 21 as part of a new government funding bill. The Houseversion of that bill does not include the photos provision, but the Senate has asked for a

conference with the House to work out the differences between the two billsan action

expected to occur early in June.

If the aforementioned bill does not become law by the deadline for seeking Supreme Court

review, the United States will file a petition for a writ of certiorari,the motion said. Recalling

the mandate would serve the important purpose of preserving the status quo pending a

determination by the Supreme Court.

To bolster its argument that disclosure of the photos would put U.S. troops abroad at risk, the

papers included sworn statements to that effect by Gen. David H. Petraeus, the overall U.S.military commander for Iraq and Afghanistan, and Gen. Raymond T. Odierno, U.S. commander

in Iraq. (Those statements are included, in redacted form, in the papers linked above.)

. . .
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7/15

Lieberman, Graham Introduce Detainee Photographic Records Protection Act

May 20, 2009 bysenatus

. . .

From Lieberman, Graham Threaten To Shut Down Senate Over DetaineePhotos

Jeff Muskus, Huffington Post

First Posted: 06- 9-09 02:00 PM | Updated: 06- 9-09 07:47 PM

Sens. Joseph Lieberman (I-Conn.) and Lindsey Graham (R-S.C.) lambasted transparencyadvocates at a press conference Tuesday, when they renewed their promise to bring Senate

business to a halt until their bill blocking the release of detainee photographs becomes law.
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8/15

"If these photos see the light of day, it will be a death sentence to some serving abroad," Graham

said. The removal of the photo amendment, he said, "is one of the most outrageous andirresponsible acts in the history of the Congress." He said the initial response to the Abu Ghraib

scandal was necessary and the punishments meted out were appropriate.

Graham said there is consensus among many senators, military officials and diplomats about theneed to pass the bill. Even the White House is in support, he said, and helped them draft the

bill, remaining supportive of it in conference. Both senators dismissed House Democrats'concerns about the bill as "naive" opinions held by a "fringe minority."

. . .

FromPhoto Fight: Lieberman and Graham Threaten Senate Shutdown

HTTP://WWW.WEEKLYSTANDARD.COM/WEBLOGS/TWSFP/2009/06/PHOTO_FIGHT.ASPBY

MICHAEL GOLDFARB THE WEEKLY STANDARD June 9, 2009 1:02 PM

Note: edited transcript follows this article.

Senators Lieberman and Graham have just concluded a press conference held in response to a

still unconfirmed move by the Democratic leadership in the House to strip from the supplemental

appropriations bill an amendment that would bar the release of detainee photos. That

amendment, the Detainee Photographic Records Protection Act, had been attached to the

supplemental by a unanimous voice vote in the Senate and with the explicit support of the White

House. However, as THE WEEKLY STANDARDreportedlast Friday, the Democratic

leadership has been unable to secure the votes necessary to pass the supplemental and is moving

to strip out the Graham-Lieberman amendment under pressure from House liberals.

A senior Democratic aide tells THE WEEKLY STANDARD that "the House is putting the

demands of the ACLU before the interests of the troops." This aide also said that Liberman and

Graham "are going to attach [the amendment] to every piece of legislation that comes down the

pike." And indeed as Lieberman said at the press conference this morning, "we already actually

added our original legislation as an amendment to the FDA regulation of tobacco bill that's on

the floor right now."

Graham went even further during the press conference and threatened to shut down the Senate if

their legislation is not passed. "We're not going to do any more business in the Senate...sonothing's going forward until we get this right," Graham said. Meanwhile, it may be premature

for the left to declare victory. According to Fox News, House Majority Leader Steny Hoyer is

apparently unawareof any deal between House Democrats and Pelosi. "I don't know whether an

agreement has been reached," Hoyer said, and Pelosi herself has yet to weigh in on the matter,

though reporters have quoted Democratic aides in an attempt to divine her position.
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9/15

The Democratic aide I spoke with assured me that Lieberman and Graham "are not going to go

quietly into the night" on this because failure to do so would "clearly put the troops in danger."

This source added that if Pelosi has cut a deal with liberal members of her caucus, she is

"defying the White House, and defying the commanders on the ground."

Indeed, Obama is being put in a tough position by a Speaker who has already been portrayed as

running roughshod over the administration. If Obama, after backing a measure as critical to the

safety of U.S. troops and securing the unanimous support of the Senate in favor of that measure,

gets rolled by Nancy Pelosi and a bunch of liberal House Dems doing the bidding of the ACLU,

the White House will not only look weak and feckless, it will have been proven to be weak and

feckless.

EDITED transcript of the press conference

Press Conference on Detainee Photo Release Amendment

June 9, 2009

Senator Joe Lieberman (ID-Connecticut)

Senator Lindsey Graham (R-South Carolina)

LIEBERMAN: Senator Graham and I have returned here to discuss this ongoing battle over the

release of -- of photos of treatment of detainees. As you know, President Obama overturned a

decision of some of the attorneys in the Justice Department not to appeal from a lower court

decision in an ACLU lawsuit that would have compelled the release of these photos. President

Obama did the right thing. He did the right thing because he knows that the release of these

photos will achieve no good and will do great harm.

That's why Senator Graham and I introduced the Detainee Photographic Records Protection Act,

to back up President Obama's commander in chief decision not to release these photos. It's why

we were very pleased to introduce it as an amendment to the Supplemental Appropriations Act,

which was adopted unanimously, and then the supplemental bill itself passed by a vote of 86 to

three in the Senate.

If this amendment is dropped, Senator Graham and I will not go quietly into the night. And we

will not do so because the safety of our troops and our nation of the American people is on the

line. We will use all of the legislative tools at our disposal to see to it that this amendment

prohibiting the release of these photographs of detainees will be adopted.

. . .


10/15

SENATOR GRAHAM: And our goal is to make sure that Congress speaks in a way that these

photos never see the light of day. I think everyone agrees the most effective way to stop the

photos from being released is congressional enactment of a law telling the courts we do not want

these photos released.

The Congress has spoken through the Senate. The commander in chief has spoken loud and

clear. The only body that is off-script, in my opinion, is the House. If they drop this in

conference, it will be one of the most outrageous and irresponsible acts in the history of the

Congress.

Why do I say that? Because it would mean that members of Congress will dismiss advice from

commanders in the field at a time of war. And these are not just any commanders. These

commanders have been at war for years. They know what they're talking about, Generals

Petraeus and Odierno. They told us without any hesitation that if these photos are released our

enemies will use it to incite violence against our troops. If these photos see the light of day, it

will be a death sentence to some serving abroad.

We're talking about supporting the commander in chief, who happens to be a Democrat.

President Obama is right, and I'm here to help him. They helped -- they helped us write the

amendment. This man here is truly representing the best in America, an independent Democrat

who understands what this war is really about and has risked his own career in the past, but we're

standing with our president today, the secretary of defense, the Senate as a whole. We're standing

with our commanders. We're standing with our troops and with our diplomats.

Because this is the first shot in a long war. There are other lawsuits pending out there that want

to compromise our national security in the name of freedom of information and transparency.There's more to come. Let us fight this battle today. Let us win today, so we don't have to fight it

tomorrow.

LIEBERMAN:

Thank you.

. . .

QUESTION & ANSWER SESSION:

QUESTION: Senator Graham, two questions. The release -- the opponents of your

amendment say that the release of the initial (inaudible) photos played a very significant

role in galvanizing public opinion on quote/unquote "torture" and abuse (inaudible) harsh

methods at Abu Ghraib.


11/15

GRAHAM:

But it's a very good question. I think the initial approach we took to Abu Ghraib overall has been

helpful. We had to get this out. We got it out. People have been court martialed. People have lost

their jobs. The public had a chance to understand how badly we mismanaged Abu Ghraib, and

quite frankly, the war.

But to release additional photographs I think the commander-in-chief is right, doesn't add

anything to the debate. I would quote again Senator Inouye, "We have enough pictures. I've seen

some of the pictures they want to publish. They don't add anything to the debate."

QUESTION:

(OFF-MIKE)

LIEBERMAN: Well, we certainly drafted the amendment together with people in the WhiteHouse. My understanding has been that the White House has been attempting in the Conference

Committee to keep this language in, because the president does not want these photos to see the

light of day.

GRAHAM: I think it's important to understand President Obama's decision and how he arrived

at the decision he did.

Initially, the administration was not going to appeal the 2nd Circuit's court decision to require

release of the photos. We wrote a letter to the president asking him to reconsider. But, more

importantly, our commanders called the president -- they didn't call him, he called thecommanders.

He sat down with Secretary Gates. He listened to General Odierno. And it's our belief that

General Odierno told him, "Mr. President, if you release these photos, you're going to create a lot

of chaos here in Iraq." And Prime Minister Maliki said, "Baghdad will burn, and it will put in

jeopardy the approval of the SOFA agreement."

QUESTION: Have you taken your case directly to Speaker Pelosi and the HouseDemocratic leadership, or spoken to Senator Reid about this, made your (inaudible)?

GRAHAM: We've been pretty low key about this. We passed this thing without a voice vote. The

administration helped write the bill. We compromised in the Senate.And we've been very quiet,

thinking this thing was put to bed. The last thing I wanted to do is make a big issue about this. I

didn't ask for a recorded vote, and we could have.


12/15

QUESTION: Chairman Frank was saying last night that he wanted to, rather than see the

bill go straight through in Appropriations, he wanted to see hearings and hear from the

diplomatic corps and military. Would you allow other business to go forward while that

proceeds or no?

LIEBERMAN: No. And the reason is that the appeal of the 2nd Circuit decision is happening

right now. So there's -- there's an urgency to this.

. . .

H.R.2346 - Consumer Assistance to Recycle and Save Act of 2009

i.e. supplemental appropriations bill

Introduced 5-12-09, House passed 5-14-09, Senate passed with amendment 5-21-09

Latest vote 6-18-09, after conference.

Note: Photo act stripped out of conference bill. But, later attached to Homeland Security

Conference HR 2892 and passed. Signed into law 10-28-10.

. . .

[Congressional Record: October 13, 2009 (House)][Page H11195-H11257]

CONFERENCE REPORT ON H.R. 2892, DEPARTMENT OF HOMELAND SECURITY

APPROPRIATIONS ACT, 2010

Mr. PRICE of North Carolina (during consideration of H.R. 1327)

submitted the following conference report and statement on the bill

(H.R. 2892) making appropriations for the Department of Homeland

Security for the fiscal year ending September 30, 2010, and for other

purposes:

Conference Report (H. Rept. 111-298)

[...]

Sec. 565. (a) Short Title.--This section may be cited as

the ``Protected National Security Documents Act of 2009''.

(b) Notwithstanding any other provision of the law to the

contrary, no protected document, as defined in subsection

(c), shall be subject to disclosure under section 552 of

title 5, United States Code or any proceeding under that
http://www.opencongress.org/bill/111-h2346/showhttp://www.opencongress.org/bill/111-h2346/showhttp://www.opencongress.org/bill/111-h2346/show


13/15

section.

(c) Definitions.--In this section:

(1) Protected document.--The term ``protected document''

means any record--

(A) for which the Secretary of Defense has issued a

certification, as described in subsection (d), stating that

disclosure of that record would endanger citizens of the

United States, members of the United States Armed Forces, or

employees of the United States Government deployed outside

the United States; and

(B) that is a photograph that--

(i) was taken during the period beginning on September 11,

2001, through January 22, 2009; and

(ii) relates to the treatment of individuals engaged,

captured, or detained after September 11, 2001, by the Armed

Forces of the United States in operations outside of the

United States.

(2) Photograph.--The term ``photograph'' encompasses all

photographic images, whether originals or copies, including

still photographs, negatives, digital images, films, video

tapes, and motion pictures.(d) Certification.--

(1) In general.--For any photograph described under

subsection (c)(1), the Secretary of Defense shall issue a

certification if the Secretary of Defense determines that

disclosure of that photograph would endanger citizens of the

United States, members of the United States Armed Forces, or

employees of the United States Government deployed outside

the United States.

(2) Certification expiration.--A certification and a

renewal of a certification issued pursuant to subsection

(d)(3) shall expire 3 years after the date on which the

certification or renewal, is issued by the Secretary of

Defense.

(3) Certification renewal.--The Secretary of Defense may

issue--

(A) a renewal of a certification at any time; and

(B) more than 1 renewal of a certification.

(4) Notice to congress.--The Secretary of Defense shall

provide Congress a timely notice of the Secretary's issuance

of a certification and of a renewal of a certification.

(e) Rule of Construction.--Nothing in this section shall be

construed to preclude the voluntary disclosure of a protected

document.

(f) Effective Date.--This section shall take effect on the

date of enactment of this Act and apply to any protected

document.

[...]

Joint Explanatory Statement

Section 565. The conference agreement includes and modifies

a new provision proposed by the Senate on the release of

protected national security documents. The House proposed no


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similar provision.

. . .

[Congressional Record: October 20, 2009 (Senate)]

[Page S10544-S10559]

DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS ACT, 2010--CONFERENCE

REPORT--Continued

[...]

Mr. LEAHY. [...]

Mr. President, I commend the Senate for enacting the Leahy-Cornyn

OPEN FOIA Act--a commonsense bill to promote more openness regarding

statutory exemptions to the Freedom of Information Act, FOIA--as part

of the Department of Homeland Security Appropriations Act, H.R. 2892.

This FOIA reform measure builds upon the work that Senator Cornyn and I

began several years ago to reinvigorate and strengthen FOIA by enactingthe first major reforms to that law in more than a decade.

The Freedom of Information Act has served as perhaps the most

important Federal law to protect the public's right to know for more

than four decades. The OPEN FOIA Act will help to ensure that FOIA

remains a meaningful tool to help future generations of Americans

access government information.

The OPEN FOIA Act will make certain that when Congress provides for a

statutory exemption to FOIA in new legislation, Congress states its

intention to do so explicitly and clearly. In recent years, we have

witnessed a growing number of so-called ``FOIA (b)(3) exemptions'' in

proposed legislation--often in very ambiguous terms--to the detriment

of the American public's right to know.

[...]

Mr. McCAIN. [...]

I am also pleased this conference report does contain a provision

that will allow the Secretary of Defense to prohibit the disclosure of

detainee photographs under the Freedom of Information Act if he

certifies that release of the photos would endanger U.S. citizens,

members of the Armed Forces, or U.S. Government employees deployed

outside the United States.

[...]

H.R.2892

Title: Department of Homeland Security Appropriations Act, 2010

Sponsor:Rep Price, David E.[NC-4] (introduced 6/16/2009) Cosponsors

(None)

Related Bills:H.RES.573,H.RES.829,S.1298

Latest Major Action: Became Public Law No: 111-83 [GPO:Text,PDF]

House Reports:111-157; Latest Conference Report:111-298(in Congressional

RecordH11195-11257)
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MAJOR ACTIONS:

6/16/2009 Introduced in House

6/16/2009 The House Committee on Appropriations reported an original measure,

H. Rept.111-157, by Mr. Price (NC).

6/24/2009 Passed/agreed to in House: On passage Passed by the Yeas and Nays:

389 - 37 (Roll no. 450).

7/9/2009 Passed/agreed to in Senate: Passed Senate with an amendment by

Yea-Nay Vote. 84 - 6.Record Vote Number: 229.

10/13/2009Conference report H. Rept.111-298filed.

10/15/2009Conference report agreed to in House: On agreeing to the conference

report Agreed to by the Yeas and Nays: 307 - 114 (Roll no. 784).

10/20/2009Conference report agreed to in Senate: Senate agreed to conference

report by Yea-Nay Vote. 79 - 19.Record Vote Number: 323.

10/20/2009Cleared for White House.

10/22/2009Presented to President.

10/28/2009Signed by President.

10/28/2009Became Public Law No: 111-083 [Text,PDF]

. . .
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"The [Untold] Tillman Story" Appendix J1 -- 2009 McChrystal Protection Act (7/15/10)

Documents

Transcript of "The [Untold] Tillman Story" Appendix J1 -- 2009 McChrystal Protection Act (7/15/10)