By Keith Perine, CQ Staff

The Justice Department filed a motion Thursday in the 2nd Circuit Court of Appeals asking the court to recall its mandate that the administration hand over dozens of photos of detainees held in Iraq and Afghanistan.

The American Civil Liberties Union sought the pictures, which allegedly depict detainee abuse, in a Freedom of Information Act lawsuit. The administration initially agreed to comply with a 2nd Circuit order to turn over the photographs. But earlier this month, President Obama decided not to do so. On May 21, the Senate adopted an amendment to a fiscal 2009 supplemental spending measure (HR 2346) that would exempt the photos from the FOIA law.

The government told the 2nd Circuit — whose members include Supreme Court nominee Sonia Sotomayor — that Solicitor General Elena Kagan has decided if that legislation is not enacted by June 9, the government will petition the Supreme Court to decide the case.

“In these circumstances, a recall of the mandate is appropriate not only to allow the government to petition the Supreme Court for a writ of certiorari, but to allow the completion of the legislative process prior to the release of the photographs,” the Justice Department wrote in its motion.

The department’s filing includes a redacted declaration by Gen. David H. Petraeus, chief of the U.S. Central Command, that releasing the photographs would endanger U.S. troops in Iraq and Afghanistan.

“In addition to fueling civil unrest, causing increased targeting of U.S. and coalition forces, and providing an additional recruiting tool to insurgents and violent extremist groups, the destabilizing effect on our partner nations cannot be underestimated,” Petraeus wrote.